W. Comer Petheram, C.J.
1. This was a second appeal which arose out of a suit brought by the plaintiff to recover a balance of rent at the rate of Rs. 22-2 per annum. The defendant by his pleader, on the settlement of issues, stated that he was tenant to the plaintiff of the land in question at a rental of Be. 18-10-6 and the Munsif fixed as the first issue for trial-Is the defendant's rental Rs. 22-2 as alleged by the plaintiff, or Rs. 18-10-6 as alleged by the defendant? And the questions which arise in the second appeal and in this reference are upon that issue. Both the Munsif and the District Judge, before whom the case came on appeal in the first instance, have found upon this issue that the defendant's rental is Rs. 18-10-6. The case has been brought before the High Court on second appeal, and the plaintiff contends,-first, that there was no evidence on which the Munsif and the District Judge could come to such a finding; second, that even if there was some evidence, the Judge's judgment shows that he has so misunderstood the plaintiff's case, and has so misapplied the law, that his finding on the facts may be re-opened in this Court on second appeal; and, thirdly, that even if the rent is found to be Rs. 18-10-6 only, the plaintiff is still entitled to recover the larger sum of Rs. 22-2, the balance being made up of items which are neither uncertain nor arbitrary, and which the evidence shows the defendant agreed to pay as part of the consideration for his occupancy of the plaintiff's land.
2. To discover whether these contentions are well founded, it is necessary to see what was the evidence which was given in the case. The suit, both before the Munsif and the District Judge, was heard along with thirteen others relating to the same mouzah, and they are all governed by the same judgment.
3. The plaintiff, in order to prove that the defendant's rent was Rs. 22-2, called the defendant himself, and also required him to produce his receipts for rent for the years 1286 to 1292, inclusive. The defendant did not produce the receipts, and secondary evidence of their contents was given by the plaintiff, who produced the corresponding counterfoils which were in the following form:
'No. D. A. 1678.Dumraon Raj. No. 2 . . . . . . . . . .Re. 1 (one rupee).Date 25th Kuar 1286.Mohit Koeri Kushtkar, inhabitant of Ramu Baria, through self, on account of rent, as per details of Mouzah Ramu Baria, Pergunnah Bhojepore.'Out of (the rent of) the year 1286 Re. 1 (one rupee)Received one rupee. (Sd.) Adinath Rai, Tehsildar.By his own pen. (Sd.) Deo Narain Lal, Putwari.
4. These counterfoils showed that in several of the years from 1286 to 1292 the defendant had paid the exact sum of Rs. 22-2, and that the yearly payments bud always been within a few pice of that sum.
5. The plaintiff also put in his jamabundis for those years, which were in the following form:
Annual Jamabundi of Mouzah Ramu Baria for the year 1286.
Serial Name Nukdi Bhowli Total Nukdi Bhowli Total Saer. Total Road Jama Arrears. Jama Paid. Balance. Deduct Balance.
nubmer. of land. land. quantity rent. rent. rent. rupees. Cess (total) (total amount
tenant. of land. and rent. rupees). sued
B.C.D. B. C. D. Rs. A. Rs. A. Rs. A. Rs. A. Rs. A. Rs. A. Rs. A. Rs. A. Rs. A. Rs. A. Rs. A.. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
23 Mohit 4 10 14 ... 4 10 14 22 2 ... 22 2 ... 22 9 0 11 22 13 1 6 24 3 22 2 2 1 ... 2 1
6. The defendant in his evidence said:
I am defendant in Suit No. 56. I know that sarak, khuruch, chando, neg, batta are in the rental, because I have been paying them. Batta is included in my rental of Rs. 18-10-6, I do not object to this batta. I do not recollect it I have paid all the abwabs separately from or with the rental proper. I do not know if receipts were called for. Receipts are not preserved. I do not remember from whence sarak, neg, khuruch and chanda have been collected.
7. The plaintiff also put in the sehas for those years when it appeared that they were kept in the following form:
Dumraon Raj. Maharaja Radha Prosad Singh, Saheb Bahadur, proprietor, Pergunnah Bhojepore.-Seha (account) of individual tenants in the tehsil (collection) of Adinath Rai, the tehsildar of Mouzahs Ramu Baria, etc., for the week commencing from the (a) 25th of the month of Kuar 1286 and ending with the 25th of the month of Kuar 1286 Fasli.
For The Current Year. Arrears With Specification of tears.
Date No. English Name of Name Arrears Land Mursam Ikrar Interest. Year. Land Mursam Road Ikrar Interest. GRAND
of of letter cultivator of for rent (fee) money. rent (fee). cess money. TOTAL.
Seha. Sefa. and with mouzah the with Road with and
number residence. wherein current batta cess batta Public
entered the year. and and and Works
in the holding sarak Public sarak cess.
receipt for (road Works (road
form. which fund cess. fund
rent is cess), cess),
paid is etc. etc.
Re. Re.. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... 2 1678 Mohit Do. ... 1 ... ... ... ... ... ... ... ... ... 1
8. The plaintiff called his tehsildar and putwari, the latter of whom said that in the zemindari accounts of certain years batta, sarak, etc., were entered in separate columns. The defendant filed an authenticated copy, of the plaintiff's jamahundi for 1279, which was in the following form:
Mouzah Ramu Baria, Pergunnah Bhojepore, property of Maharaja Radha Prosad Singh Ji Bahadur-Annual jamabundi of individual tenants.___________________________________________________________________________________________________________________Name of tenant Quantity Land Road Putwaris Usual GRANDof land. rent. cess. Batta' neg (fee), charges. TOTAL____________________________________________________________________________________________________________________... ... ... ... ... ... ... ...Mohit Koeri. Bgs. C. Dh. Rs.A.P. Rs.A.P. BgS.C.DH. Rs. A.P. Rs. A.P. Rs. A.P. Rs. A.P. Rs. A.P. Rs. A.P.Kodar 2 12 0 5 0 0 14 4 0 4 10 14 18 10 6 0 3 0 1 10 0 0 14 6 0 5 3 21 7 0Baharsi 1 18 14 2 8 0 4 6 6_______ ________4 10 14 18 10 6___________________________________________________________________________________________________________________(a) Sic.
9. Upon this evidence the Munsif found as a fact that the defendant's rent was Rs. 18-10-6. He considered that the jamabundis filed by the plaintiff were fabricated; that the receipts filed by him merely showed the amount paid, and did not prove conclusively that the whole of the money paid by the defendant was on account of rent only, and that the jamabundi for 1286, together with the sehas, showed that the difference between Rs. 18-10-6 and Rs. 22-2 was not rent at all, but was made up of various impositions and charges, and he accordingly found the first issue in favour of the defendant. When the matter came before the District Judge on appeal, he affirmed this finding of the Munsif. And the first question which has been argued before us has been whether there is any evidence on the record to support this finding. I think there is. The defendant himself stated that his rent was Rs. 18-10-6; the jamabundi of 1286 indicated that at that time the rental was Rs. 18-10-6, and the sehas for the subsequent years indicated that even if it be assumed that the form of the jamabundi had been changed since that time, the fact still remained the same; that the sum of Rs. 22-2 claimed by the plaintiff was made up of the rent with other charges added to it, and whether they were evidence for the plaintiff or not the sehas were clearly evidence against him. The second question then arose, and the plaintiff contended that if there is some evidence on the record that the rent was the smaller sum, it is apparent from his judgment that the District Judge has so entirely misunderstood the case that his finding of fact may be reconsidered on second appeal. In the fifth paragraph of his judgment he says:
The plaintiff will not tell us the exact date of the 'consolidation' but at last gives us about 1286P. These modem consolidations cannot, as this Court has often ruled, be made by the malik alone. He must secure the acquiescence of the tenants concerned. There has, therefore, been no 'consolidation,' as alleged.
10. And Mr. Woodroffe, on behalf of the plaintiff, says that it is apparent that the Judge thought that the plaintiff, in order to succeed, must prove a consolidation of the rent and other items by some particular agreement come to between the parties at some specified time; that with this in his mind he compelled the plaintiff's pleader to mention some time, and that when he mentioned 'about 1286,' assumed that the plaintiff's contention was that the consolidation was effected by the change of the form of the jamabundi, and that as that was the act of the landlord alone, it would not bind the tenant; whereas the plaintiff's case was that the form of the jamabandi and receipts prove that the rent has always been the larger sum, and that the other figures merely show the mode of calculation by which the rental was originally arrived at.
11. If this was the view of the Judge as to what the plaintiff's real case was, I cannot say that he was wrong. The jamabundi of 1286 shows that the Rs. 22-2 was made up of that sum and various other items, and the sehas for the subsequent years, which, as I have before said, are certainly evidence against the plaintiff, show to my mind that the Rs. 22-2 always contained something other than rent, though they do not show what it was. These documents, in my opinion, rebut the inference of fact which may no doubt be drawn from the receipts, that the rent since 1286 has been enhanced to the sum of Rs. 22-2, of which fact the receipts for three years are made evidence by Section 29 of the Bengal Tenancy Act, and prove conclusively to my mind that the change in the jamabandis was one of form only, representing no fresh agreement between the parties and made by the landlord with the intention of consolidating the other items with the rent, which he could not do except by agreement with the tenant.
12. I agree, then, with the Munsif and the District Judge that the rental was Rs. 18-10-6, and that the difference between that amount and Rs. 22-2 is made up of the items mentioned in the jamabundi of 1286, and upon this finding the third question arises, which is the question upon which the case of Pudma Nund Singh v. Baij Nath Singh I.L.R. 15 Cal. 828 appeared to the referring Bench to be in conflict with that of Chultan Mahton v. Tilukdhari Singh I.L.R.11 Cal. 175.
13. The case of Chultan Mahton v. Tilukdhari Singh was decided in January 1885 before the passing of the Bengal Tenancy Act. The suit was by ticcadars to recover from a ryot Rs. 1,105-1-2 as arrears of nagdi and bhowli rent for the years 1286 to 1288, together with certain customary abwabs. The nature of the abxuabs appears in the report of the case to have been certain in this sense, that the amount depended on the amount of the rent or of the produce of the land when the tenure was bhowli. It was found as a fact that according to the custom of the estate, of which the defendant's land formed a part, these items had been paid by the defendant and his ancestors for many years, so that it appeared that they were not uncertain or arbitrary, but were always paid, the amount of them each year being merely a matter of calculation. Mr. Justice MITTER, at page 183, says as to this-
It has been next contended that although the disputed items in the plaintiff's claim are described in the plaint as old usual abwabs, and in the zemindari accounts also they are designated as abwabs separate and distinct from the specified rent, yet they are not abwabs, hut part of the rent. This contention is mainly based upon the ground that anything which is certain and definite does not come under the class of abwabs, the imposition of which is prohibited by the Regulations. Although the Regulations did not clearly define what an abwab is, still I think it cannot be maintained that anything which is definite and certain is not an abwab under the Regulations, although the parties to the contract may call it so. It seems to me that the Regulations, without defining accurately what an abwab is, left this question for the determination by the Court in each case upon the evidence. I cannot find anywhere in the Regulations the precise definition of the word abwab which would justify me to treat the disputed items of claim as part of the specified rent, although the plaintiff claims them in the plaint and enters them in the zemindari accounts as abwabs.
14. And the Full Bench held that nothing beyond the nagdi and bhowli rent could be recovered, any contract for the payment of the other items, whether express or implied, not being enforceable.
15. This case came before the Privy Council on appeal I.L.R. 17 Cal. 131 : L.R. 16 I.A., 152. The judgment of the High Court was affirmed. Lord MACNAGHTEN, in delivering judgment in speaking of the items in question, says-
Unquestionably they have been paid for a long period; how long does not appear. They are said to have been paid according to long-standing custom. Whether that means that they were payable at the time of the Permanent Settlement or not is not plain. If they were payable at the time of the Permanent Settlement, they ought to have been consolidated with the rent under Section 54 of Regulation VIII of 1793. Not being so consolidated, they cannot now be recovered under Section 61 of that Regulation. If they were not payable at the time of the Permanent Settlement, they would come under the description of new abwabs in Section 55, and they would be in that case illegal.
16. By this judgment I understand the Privy Council, while affirming that of the High Court, to go beyond it and to hold that under the Regulations nothing could be recovered for the occupation of land, except one sum which must include everything which was payable for such occupation arrived at either by agreement or by some judicial determination between the parties, and that any contract, whether express or implied, to pay anything beyond that sum, under any name whatever, for or in respect of the occupation of the land, could not be enforced.
17. After the decision by the High Court of the case which I have now considered, but before the decision by the Privy Council, the present Bengal Tenancy Act (VIII of 1885) came into force. The sections of that Act which are material to consider are Section 3, Sub-section 5, by which rent is defined to be 'whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant,' and Section 74 which enacts that 'all impositions upon tenants under the denomination of abwab, mahtut or other like appellations, in addition to the actual rent, shall be illegal, and all stipulations and reservations for the payment of such shall be void.' After this Act had been passed, but before the decision of the Privy Council, the case of Pudma Nund Singh v. Baij Nath Singh I.L.R. 15 Cal. 828 was decided by a Division Bench of the Court. In that case the plaintiffs sued to recover Rs. 2,830-13-3 for arrears of rent and for tehwari and salami due to them for the years 1290 to Baisakh 1293 in respect of a mokurari tenure held under them by the defendant. The basis of the suit was a kabuliyat, dated 25th December 1869, by which the defendant agreed to pay a certain fixed rent, plus a small annual addition for items designated therein as tehwari dusara and salami towzi, in respect of which items the amounts declared to be payable were Rs. 9 and Rs. 2, respectively. The only question was whether the tehwari and salami could be recovered. The learned Judges held that as the items in dispute werenot arbitrary and uncertain in their character, but were specific sums which the tenants had agreed to pay to their landlords, they were in fact part of the rent agreed to be paid and were not abwabs at all. They considered that what is or is not an abwab must depend on the circumstances of each particular case in which the question arises, and they allowed the plaintiff's claim. It is clear that this case may be reconciled by the judgment of the High Court in the other case, as Mr. Justice MITTER expressly says that the question whether the disputed item is an abwab must be decided by the Court in each case; but if I have correctly understood the judgment of the Privy Council in the same case, it is equally clear that it cannot be reconciled with that, as that decided that nothing can be recovered from the tenant except the one sum fixed as the rent of the land, and in this view, I think, we must hold the case of Pudma Nund Singh v. Baij Nath Singh I.L.R. 15 Cal. 828 to be overruled by the decision of the Privy Council in that of Chultan Mahton v. Tilukdhari Singh I.L.R. 17 Cal. 131 : L.R. 16 I.A. 152, and that unless the law has been changed by the Bengal Tenancy Act in favour of the landlord, the items in dispute in this action cannot be recovered, as they have been proved to be something beyond the sum which had been agreed upon as rent. The definition of rent in Section 3 of the Act does not, in my opinion, affect the question, as that would have been the correct definition of rent without the assistance of the Act, and consequently was so at the time of the decision of the Privy Council, and the only question is as to the meaning of Section 74. I think that the effect of that section is to declare the law to be as it is laid down by the Privy Council in the judgment which I have cited, and to be that no imposition under any name whatever shall be recovered from the tenant for or in respect of the occupation or tenure of the land beyond the sum which has been fixed for rent, whether that sum has been fixed by agreement or by judicial determination between the landlord and the tenant.
18. In my opinion the portions of the claim which are objected to are illegal, and cannot be recovered as rent, and the second appeal should be dismissed with costs.
19. In this case the plaintiff, a zemindar, sued the defendant, his ryot, for arrears of rent due on account of the years 1290 to 1293. The plaintiff alleged that the rent was Rs. 22-2 per annum. The defendant, on the other hand, contended that it was only Rs. 18-10-6, and that he had paid that sum. He also added that the difference between Rs. 18-10-6 and Rs. 22-2, claimed by the plaintiff, consisted of illegal cesses which had been incorporated with the original rent.
20. In the first Court the plaintiff' examined his putwari, his tehsildar, and the defendant, in support of his case. The jamabundis, or collection papers from 1286 to 1292, were also produced as corroborative evidence.
21. The Munsif held that the jamabundis from 1286 to 1292 had been fabricated in order to support a false case. He has also held that the amount claimed as rent included abwabs, such as sarak, khuruch, neg, and batta; he found that the proper rent was what the defendant alleged it to be, and on that basis he decreed the arrears found to be due.
22. The plaintiff appealed to the Lower Appellate Court. He argued that the Munsif should have found whether the amounts claimed to be included in the jama, and disallowed by the lower Court, were legal cesses or not, and he urged that the onus of proving that illegal taxes were included in the rent claimed lay on the defendant. He further asserted that the Munsif was wrong in saying that the jamabundis produced on the part of the plaintiff were not genuine, and asserted that the plaintiff's claim was proved by the statements of the defendant and the papers admitted by him. These contentions seem to have failed before the Judge in the lower Court. He came to the same conclusion in regard to the jamabundis as the Munsif, and he agreed with that judge in thinking that the sum stated by the defendant was the asul jama, while the amount claimed by the plaintiff as the yearly rent was made up of the jama with other items, such as sarak, khuruch, neg, and batta.
23. This being the case, and the suit being a suit for rent, he refused to grant the items in excess of the annual rent, because, in his opinion, it was not rent, and the plaintiff ought not to succeed on a different title. He therefore dismissed the appeal.
24. From that decision a second appeal was preferred to this Court, and before the Division Bench it was contended on behalf of the plaintiff that the defendant having for many years paid the sums claimed and taken receipts as if the amounts paid had been rent without any specification of the items sarak, khuruch, neg, and batta, he was bound to pay rent at that rate, and the Court below ought to have held that there had been not only a consolidation of these sums with the rent, but an implied agreement by the defendant to pay the whole amount as rent.
25. So far as I can see that is not a valid ground of second appeal. In the case of Mecr Mahomed Hossein v. Forbes, their Lordships of the Privy Council say L.R. 2 I.A. at p. 6:
The case was before the High Court upon special appeal, and, therefore, in strictness, they had nothing to do with the evidence in the cause.
26. In the more recent case of Pertap Chunder Ghose v. Mohendro Purkait L.R. 16 I.A. 233 at p. 238 : I.L.R. 17 Cal. 291, at p. 298, decided by their Lordships on the 29th June 1889, there is the following passage:
Their Lordships have doubted whether the Judges of the High Court in hearing the appeals, had regard to the provision in the Code of Civil Procedure (Act XIV of 1882), Section 584, as to appeals from appellate decrees, and thought they were at liberty to consider the propriety of the findings of the District Judge upon questions of fact. Certainly there are some passages in their judgment, particularly in the latter part, if not in the former, which suggest this. Their Lordships must observe that the limitation to the power of the Court by Sections 584 and 585 and in a second appeal ought to be attended to, and the Appellate Court ought not to be allowed to question the finding of the first Appellate Court upon a matter of fact.
27. In this case two Courts have come to the same conclusion on a matter of fact, which goes to the foundation of the case, namely, what was the rental of the defendant; and thev have decided adversely to the appellant. This seems to me to conclude the case, and to render it impossible for us to decree the second appeal in favour of the appellant.
28. In this view of the case it would seem unnecessary that I should answer the question referred to this Court, namely, 'whether the portions of the claim that are objected to as coming under the denomination sarak, neg and khuruch, are illegal cesses, or whether they are recoverable as rent by reason of their having been paid for a long time along with rent and without any specification in the rent receipts,' but as the Judge in the Court below has forwarded as part of his judgment a decision on the nature of abwabs, and a majority of the Judges composing the Full Bench think that it should be answered, I think it is better to give my opinion.
29. In order to determine what was the meaning of rent under the old Regulations, and what were the cesses and assessments that they were intended to prohibit, it is necessary to see what the law was before the time of the Permanent Settlement; what the evils were that the Legislature then intended to get rid of, and how they attempted to do it.
30. Before the acquisition of Behar by the East India Company, the distinction between rent and revenue can hardly be said to have existed. Both were looked upon as the dues of Government, rather in the form of a tax on land than as rent. Thus in Regulation XLIV of 1793 (Preamble), we find it declared that, according to the established usages of the country-and these, according to 24 Geo. III, (1784), Chapter 25, Section 39, were to guide the Directors in fixing the income of Government from land-these dues consisted of a certain proportion of the annual produce of every bigha of land demandable, according to the local custom, either in money or kind. This right was a right peculiar to the State alone. So that as long as the Moghul Government was strong enough to govern the provincial rulers, taxation, so far as it fell upon land, may be said to have been substantially of a fixed nature. In Behar the zemindar divided the pro-' duce of the lands with the cultivators in stated proportions; and in Bengal a settlement was made with the ryot upon a standard called the asul, or original rate, with the accumulation of taxes successively imposed upon it. These taxes were divided into abwab and mahtut, and in calculating the zemindari demand, now called rent, the zemindar levied the asul or ground rent according to the jamabundi, or assessment, of each village, and the excess imposed, if abwab, according to the rate of the pergunnah, and if mahtut, according to the rate of each chukla.
31. These two, namely, the asul and abwab constituted the whole land revenue demand imposed on the ryot prior to and after the British rule. To illustrate this, I print from Mr. Shore's Minute the following abstract (Fifth Report, Vol. I, p, 163) of a ryot's account taken about the year 1781:
Rs. A. G. K.Rent of 7 bighas 12 cottahs 7 chittacks of land of various produce, calculated at a certain rate per bigha according to its produce ... 14 0 8 0 Abwab cesses.Rs. A. G.Chout at 3-16 per rupee ... 2 10 0Pulbundi, a half mo. demand or 1/2-4 ofthe jama ... ... 9 7 2Nuzzerana, 1 mo. or 1/2 ... 1 2 15Mangan, 1 mo. or 1/2 ... ... 1 2 15Fouzdari 3-4 of 1 mo. amount or1-16 ... ... ... 14 15 0Company's nuzzerana, 1 1/4 mo. ... 0 1 7Batta 1 anna per rupee ... 0 0 14__________ 8 12 2 0__________Total ... 22 12 10 2Khelat 1 1/2 anna per rupee ... ... 2 2 1 2_________Total jama ... 24 14 12 0__________
32. As I have stated above, the assessment of land revenue was the right of the Government alone, and as a fact the Government, when in full vigour, supervised the assessment year by year. Abivabs were in their nature unconstitutional; but from the beginning of the 18th century, when the Subahdars were becoming more independent, they began to levy new perpetual imposts now called subahdari abwabs. These viceregal imposts were levied by the Subahdars in a certain proportion to the asul, or standard, assessment, and the zemindars who paid were authorized to collect them from the ryots in the proportion of their asul, or standard, assessment; and sometimes these cesses were incorporated with the original asul, so that the aggregate became a new asul, or standard of assessment, according to which the assessments on land were subsequently levied.
33. Besides being unconstitutional, there was another objection to these assessments, namely, that they confirmed the zemindars within the subah in the exaction of their abwabs and in increasing their amount in an arbitrary manner not authorized by the Subahdar. The result was that the incorporated subahdari abwabs in some instances amounted to 33 per cent, of the asul, while the zemindari abwabs amounted to somewhere about 50 per cent.
34. Moreover, in some cases, the abwabs were increased in one estate to meet a deficiency in another, so that the incidence of the taxation varied in different estates, and often according to the caste and place of residence of the ryot.
35. They were also made a means of enhancing the rent, while it was one of the objects of Government to stop enhancements made in an arbitrary and indefinite manner.
36. The mode in which these abwabs grew up is well described by Mr. Shore in reference to the ryot's account printed above. He says, in 1789:
If the accounts of the same land were now examined some additional impositions might appear. The zemindars introduce them by degrees, at intervals of two, three, four or five years, and rarely attempt them for two or three years successively. Solicitation and influence are equally employed to effect the establishment of them, and a ryot, when the burden is not too heavy, will rather submit than resist or complain. Temporary extortion may be practised at any time, but a permanent exaction of this nature can rarely be established by force alone upon the ryots. (Fifth Report, Vol. I, p. 163.)
37. It is, I think, in this sense that these cesses are said in the correspondence of that period to be arbitrary or indefinite. Thus we find them described by the officials of that period 'as arbitrary impositions, vicious in mode and principle, yet extremely moderate in amount,' as 'claimed by no measured rule, but arbitrary indefinite expediency,' as 'an oppressive exaction wholly unauthorized,' and a 'daring encroachment on the exclusive prerogative of the Sovereignty, in levying from the subject what can only be legitimate in the form of a public supply of a necessary exigency of the State.'
38. This too is, I think, the sense in which abwabs were considered as arbitrary or indefinite in the old Regulations-arbitrary, in the sense that they were unauthorized by law-indefinite, in the sense that, though levied in a certain proportion to and upon the original assessment or asul land tax, there was no definite rule guiding the zemindar in fixing the proportion they bore to the produce of the land, nor any rule prescribed for limiting their amount.
39. They were not arbitrary in the sense that the parties had not contracted in regard to them, for at that time rent was paid, not under contract, but as a land tax, as the Government share, and according to the pergunnah rate, nor indefinite in amount, since every abwab was, as in the present suit, a deter- mined sum, generally a certain defined share of the real land tax.
40. In 1772, the Hon'ble Court of Directors deprived Nawab Mahomed Reza Khan of his appointment of Naib Dewan, and determinad to stand forth publicly themselves in the character of Dewan, and in the proclamation of the 14th of May of that year1, they laid down rules for the settlemept and collection of the revenue.
41. Rule 10 states:
That the farmer shall not receive larger rents from the ryots than the stipulated amount of the pottahs on any pretence whatsoever; and that for every instance of such extortion, the farmer, on conviction, shall be compelled to pay back the sum which he shall have so taken from the ryot, besides a penalty equal to the same amount to the Sircar; and for a repetition, or a notorious instance of this oppression on his ryots, the farmer's lease shall be annulled.
42. Rule 12 states:
That no mahtuts, or assessments under the name of manqan, baurie gundee, sood, or any other abwab or tax, shall be imposed upon the ryots; and that those articles of abwab which are of late establishment, shall be carefully scrutinized, and at the discretion of the Committee abolished, if they are found in their nature to be oppressive and pernicious.
43. The rules were issued three days after the assumption of the Dewani, and -thus the prohibition of illegal assessments was almost the first act of the British Government when it assumed the revenue administration of Bengal.
44. The nature of them can be best understood from the terms in which they are described. Thus mangan in Behar, in which the land in connection with the present suit is situate, was a share of the crop given as a fee or perquisite to the headman of the village; and sood was an impost in order to meet the interest which the zemindars were compelled to pay on arrears of revenue; but what the rules plainly point out is that whether it be treated as an assessment or a tax, nothing beyond the ordinary rent was to be allowed.
45. In 1787, the Regulation regarding the assessment of revenue in Bengal was revised by Regulation VIII passed on the 8th of June of that year2. Section 50 runs as follows:
That whereas notwithstanding the orders of Government in the year 1772, prohibiting the imposition of mahtut or assessment, under the names of mangan, hauldauri, moracha, bazee jama, or sood, or any other new articles of taxation, various taxes have been since imposed, the Collector is strictly enjoined to enforce this article and prevent the imposition of any new taxes upon the ryots, and if hereafter any new tax should be imposed, the Collector, on proof of such extortion, is to decree double the amount thereof as costs of suit.' In this section it will be seen that the Legislature describes these impositions as assessments or taxes, and it gives a few examples of those impositions which were not mentioned in the Regulation of 1772.
46. This brings us down to the Bagulation relative to the Decennial Settlement which was subsequently re-enacted in 1793 when the Permanent Settlement was sanctioned. By Section 57 of Regulation VIII of 17953 it was enacted that-
The rents to be paid by the ryots, by whatever rule or custom they may be regulated, shall be specifically stated in the pottah, which, in every possible case, shall contain the exact sum to be paid by them.
47. By Section 6 of Regulation IV of 1791, it was declared - 'If a dispute shall arise between the ryots and the persons from whom they may be entitled to demand pottahs, regarding the rates of the pottahs (whether the rent be payable in money or kind), it shall be determined in the Dewani Adawlut of the zillah in which the lands may be situated, according to the rates established in the pergunnah for lands of the same description and quality as those respecting which the dispute may arise.'
48. So that what the Permanent Settlement and the Regulation of 1794 describe as rent, is the original ground rent assessed according to the pergunnah or customary rate per bigha; and it is at once distinguishable from the other assessments or taxes which have no relation to the customary rate or to the extent or produce of' the lands by the fact that the imposition of them was not caused, nor was it pretended to be attributed to, or claimable by reason of, any change in the customary rate, or in the extent or the amount of produce of the lands. Bearing this in mind, we can now understand the meaning of Sections 54, 55 and 56 of the Permanent Settlement.
49. Section 54 of Regulation VIII of 1703 declares-
The imposition upon the ryots under the denomination of abwab, mahtut, and other appellations, from their number and uncertainty, having become intricate to adjust, and a source of oppression to the ryots, all proprietors of land and dependent talukdars shall revise the same in concert with the ryots, and consolidate the whole with the asul into one specific sum.
50. Section 55 of the same Regulation enacts -
No actual proprietor of land or dependent talukdar or farmer of land, of whatever description, shall impose any new akwab or mahtut upon the ryots, under any pretence whatever.
51. Now the effect of this enactment seems to be that, at the time of the Permanent Settlement, there was, or there was believed to be, a customary assessment per bigha for the land, which was described in the Regulations themselves as the asul, and that in addition to that there were added certain assessments or taxes or cesses of various kinds which the Legislature wanted to prohibit for the future, and that they proposed to bring about this result by compelling each zemindar to revise the assessments or taxes then existing in concert with his ryots, and consolidate them into one specific sum which would form a new asul, and to absolutely prohibit any new assessment, imposition or tax in addition to the asul for the future- Ram Kant Butt v. Gholam Nubby Chowdhry 2 Sel. Rep. 58. A certain time was given for this consolidation, and if not carried out, it was declared that any action for the realization of the abwabs beyond the asul or ground rent should be non-suited.
52. We can now easily understand the meaning of the jamabundi of 1279 which was relied upon by the defendant in the present case:
_____________________________________________________________________________________________Names of tenants. Land. Lagan. Sarak. Batta. Purtwari Ordinary TOTAL.neg. expenses._____________________________________________________________________________________________
53. After the name of the tenant, comes' land.' Then the ground rent called 'lagan,' Then comes 'sarak,' a cess in connection with roads. Then 'batta,' a tax imposed to make up any deficiency in the currency, which has always been considered an abwab-Chukan Sahoo v. Roop Chand S.D.A. 1848, p. 680; Regulation LI of 1795, Section 3, Clause 6. No question as to batta arises in this case. Then 'putwari's neg,' a cess imposed for the payment of the putwari and declared to be an abwab by the decision of the Full Bench in the case of Chultan Mahtonv. Tilukdhari Singh I.L.R. 11 Cal. 175. Lastly, the column 'Ordinary expenses,' a cess to cover ordinary zemindari expenditure.
54. In accordance with the common law, and in pursuance of Section 83, Regulation VIII of 1793, the lagan was determined by the average produce of the lands in common years. But there is no law justifying the imposition of any of the other items at all; they are in name cesses, and have no connection with the produce of the land beyond that they are calculated upon the ground rent. There is no means known to the law for determining the proportion they must bear to the rent.
55. According to the view which I take of the Regulations, every item in this account, except that of' lagan,' or ground rent, is a mahtut or abivab within the meaning of the Permanent Sattlement Regulation, and the realization of any of it was punishable thereunder with a penalty of three times the amount.
56. The form of pottah issued to the ryots at the time of the Permanent Settlement was subject to control. By Section 58 of Regulation VIII of 1293, no pottah was valid unless it had been approved of by the Collector and registered in the Civil Court of the district. These restrictions as to form were partially removed by Regulation IV of 1794.
57. Towards 1812 the futility of this legislation was pressed on the Government; and as the objections to the then existing legislation cannot be better put than they are by Mr. Colebrooke, I put them in his own words. He said-
Another part of the subsisting revenue regulations, which appears to me to need emend action, is that which relates to the form of leases; and which annuls such engagements as may not be drawn in prescribed form. Before the enactment of the regulations connected with the Permanent Settlement of the land revenues of Bengal, a practice prevailed among landholders in this province of imposing on their ryots arbitrary cesses termed abwabs; being either authorized so to do by reservations in the pottahs, to subject the ryots to such abivabs as might be imposed on the pergunnah generally, or else assuming that authority without the sanction of any such reservation in the leases of their tenants. To protect the peasantry from such arbitrary exactions, which had been the source of grievous oppression and of gross abuses, the regulations of the Permanent Settlement provided that no new abwab should be imposed on any pretence, under penalty of three times the amount; that the landholders, in concert with their tenants, should revise the abivabs and consolidate them with the land rents; that they should give or tender to their ryots potthhs prepared according to a form previously approved by the Collector and registered in the Adawlut. These rules arc enforced by a provision that pottahs of any other form are to be held invalid. Notwithstanding this penalty, which was expected to enforce universal compliance, by rendering the written engagements of landlord and tenant void and of no effect, if there be a deviation from the prescribed form, there is reason to believe that little progress has been really made towards the general introduction of the simple and definite leases which it was thus intended to enforce. But whether generally or partially successful, or wholly ineffectual, that penalty ought, I think, to be now rescinded. There is no longer any sufficient motive for holding the landholders and tenantry of the country in this sort of pupilage, prescribing to them the manner and form of their reciprocal engagements. They may be safely left to consult their mutual interests, by entering into such engagements as they may consider to be for their benefit respectively, and to reduce their agreements to writing in any form most intelligible and satisfactory to themselves or in their conviction most binding and secure. All that need be required, is that the engagements shall be definite; and it may be accordingly declared that any clause of a lease, or other engagement, reserving the power of imposing cesses or taxes, termed abwab or mahtut, or under any other denomination whatsoever, or binding the pottah holder to pay any impost or addition whatsoever beyond the rent, however regulated, in money or in kind, which the pottali or engagement specifies, shall be void and of no effect, and the Courts shall maintain the remaining definite clauses, and enforce payment of such rent, and such only, as is specifically stipulated and agreed for by the pottah or other engagement. Under this alteration of the existing rules the Courts of Justice will give effect to the agreements of the parties according to their ascertained intentions, with exception only to stipulations subjecting one of the patties to arbitrary demands at the will of the other. This exception, together with the prohibition actually in force against the imposition of any arbitrary cesses or abwabs, under whatever pretence, will entirely preclude the renewal of those oppressions and abuses which the Regulations I have proposed to modify were designed to prevent.
58. For these reasons Regulation V of 1812 was enacted, and of it Sections 2 and 3 ran as follows:
SECTION 2.-Section 2, Regulation XLIV, 1793, Section 2, Regulation L, 1795, and clause second, Section 2, Regulation XLVII, 1803, by which the proprietors of land paying revenue to Government are precluded from granting leases for a period exceeding ten years are hereby rescinded, and proprietors of lands are declared competent to grant leases for any period which they may deem most convenient to themselves and tenants and most conducive to the improvement of their estates.
SECTION 3.-Such parts of Regulation VIII of 1793 and of Regulation IV of 1794 as require that the proprietors of land shall prepare forms of pottahs, and that such forms shall be revised by the Collectors, and which declare that engagements for rent contracted in any other than that prescribed by the Regulations in question shall be deemed invalid, are hereby rescinded; and the proprietors of land shall henceforward be considered competent to grant leases to their dependent taluqdars, under-farmers and ryots, and to receive corresponding engagements for the payment of rent from each of those classes, or any other classes of tenants, according to such form as the contracting parties may deem most convenient and most conducive to their respective interests; provided, however, that nothing herein contained shall be construed to sanction or legalise the imposition of arbitrary or indefinite cesses, whether under the denomination of abwab, mahtut, or any other denomination. All stipulations or reservations of that nature shall be adjudged by the Courts of Judicature to be null and void; but the Courts shall notwithstanding maintain and give effect to the definite clauses of the engagements contracted between the parties, or, in other words enforce payment of such sums, as may have been specifically agreed upon between them.'
59. Apparently some doubt arose as to the meaning of Section 2, and this was explained in Regulation XVIII of the same year. Section 2 of this enactment declared the true meaning was that proprietors of land were 'competent to grant leases for any period even to perpetuity and at any rent which they might deem conducive to their interest,' provided that a person holding a restricted interest could not grant a lease extending beyond the term of his own interest.
60. This was the law in regard to rent and abwabs which remained in force until the passing of Act X of 1859. The avowed object in passing Regulation V of 1812 was to get rid of the necessity of having the forms of leases supervised by the Collector, but at the same time to re-state the prohibition already existing in Regulation VIII of 1793 against the landholders imposing or realizing any new abwabs, not to repeal them. The time for consolidating the abwabs existing at the time of the permanent settlement had passed, and they could not be re-assessed as abwabs, but only as rent, and in those cases in which they had been consolidated with the asul. This it was considered would leave the ryot in the same position as he was after the passing of Regulation VIII of 1793.' By Section 2 of Regulation XVIII of 1812, the proprietors were empowered to grant leases of any form for rent, and by Section 3 of Regulation V of 1812 they were empowered to receive from the tenants 'corresponding engagements for the payment of rent, 'and it only. No further power was given. And as if to mark the distinction between cesses and rent, the former are referred to as paid under stipulations or reservations, the latter under engagements, and it was the engagements for the payment of rent, and not the stipulations for cesses, that were to be enforced. It was not the intention of the framers of this Regulation to allow the parties to contract for anything in money or in kind not then known as rent, and when they describe abwabs and mahtuts as arbitrary or indefinite they were only using words applied to these assessments from 1772. Bearing this in mind, a comparison of the latter portion of this section with Sections 54 and 57 of Regulation VIII of 1793 shows that the words 'specifically agreed' in Regulation V of 1812 are the same as 'specifically stated' in Section 57, and refer to the one specific sum of Section 54 in the permanent settlement. They have no reference to cesses. This is the view taken by the Full Bench, in Chultan Mahton's case I.L.R. 11 Cal. 175, where it is said that the last four lines of Section 3 of Regulation V of 1812 refer to the ground-rent in the permanent settlement. That being so, I take it that every assessment of any kind beyond that entered in the second column of the jamabimdi, which I have given above, was an arbitrary or indefinite cess within the Regulation, and prohibited by it.
61. These sections are partially repealed by Act X of 1859 and Act VIII of 1869, and are now wholly repealed by the Bengal Tenancy Act of 1885, but partly re-enacted by Section 74 of that Act, which declares:
All impositions upon tenants -under the denomination of abwab, mahtut, or other like appellations, in addition to the actual rent, shall be illegal, and all stipulations and reservations for the payment of such shall be void.
62. It seems, therefore, that all additions to the actual rent, under the denomination of abwabs, are now, as they were in 1793, illegal, and any agreement to pay them is void. This seems to me the conclusion arrived at by the Full Bench in the above ease, which was subsequently affirmed by their Lordships of the Privy Council.
63. It has been argued that a different interpretation has been put upon that decision by a Division Bench of this Court in the case of Pudma Nund Singh v. Baij Naih Singh I.L.R. 15 Cal. 828. In that case the plaintiff sued for rent, and two items denominated tehwari and salami, and in the plaint the claims for the different items were set out as follows:
1. That your petitioners, the plaintiffs, are the proprietors and zemindars of pur-gannahs Sahrai, etc., mehal Kharagpur. The defendant is the mokuraridar of mouzah Gora, etc., purgannah Parbutpatra, the zemindari of your petitioners, the plaintiffs, and pays an annual jama of Rs. 1,999-8 annas, besides road cess, public works cess, tehwari, etc.
2. That the sum of Rs. '2,830, 18 annas 3 pies on account of rent, road cess, public works cess, tehwari, interest, salami, etc., from the year 1290 to Bysak instalment of the year 1293 Fusli * * * is due from the defendant. For the Year 1290.Rs. A. P.Rent ... ... ... ... ... 1,999 8 0Road and public works cesses ... ... ... 345 0 0Tehwari ... ... ... ... ... 7 3 0Dakbehri ... ... ... ... ... 40 0 0Salami ... ... ... ... ... 1 9 9Interest ... ... ... ... ... 82 2 0_______________2,475 6 9._______________
64. The Judge in the Lower Appellate Court dismissed the claim. He found that salami was a tax levied on the occasion of a punna, or religious festival, and tehwari, another tax imposed on the occurrence of the Doorga Pooja, when it is customary for zemindars to expend money in certain ceremonies. So that he held in so many words, that both in denomination and essence, these items were cesses. He further found that the kabuliat divided the amount payable into mal, tehwari and salami, and we know that in several parts of the Regulations the word mal is used in the sense of rent, as opposed to any excess which was styled an abwab. Thus in Regulation LI of 1795, Section 2, Clause 1, we find the words mal and abwab used in this sense. In short, the Judge found they were cesses, independent of the mal or rent, and only usually payable when certain ceremonies were performed. In appeal to this Court, the Division Bench decided that the items called tehirari and salami did form part of the rent and were recoverable because they were entered in the kabuliat under which the defendant held, were not arbitrary and uncertain, but specific sums which the tenant agreed to pay; and they decided that the Full Bench decision above referred to did not lay down as law that anything recoverable in' 1312 could not be recovered at the present day. I agree in thinking that the Full Bench did not lay down any such doctrine, but I think that the Full Bench did lay down that these, amounts were not recoverable under Regulation V of 1812. In that case the Full Bench held that in the last four lines of Section 3 of Regulation V of 1812, the words sum specified' refer to the amount of the rent specified. And it follows from the Regulation itself that all stipulations or reservations for abwabs or mahtut above the rent are asul jama were, after the time of the permanent settlement, null and void. In the case of Pudma Nund Singh v. Baij Nath Singh I.L.R. 15 Cal. 828, the sums named tehwari and salami were in name cesses, and were found to be such by the lower Court, and this finding, so far as it depended on evidence, could not be interfered with in special appeal. Moreover, when we consider that so far back as 1772, long before the permanent settlement, salami was looked upon as an abwab, there can be little doubt of their nature. They were by name and nature distinct from the rent, were apparently so stated in the lease, and they were received by the landlord, not as rent, but as cesses. This distinction was marked in the plaint where they were set out by name after the rent and in sharp contrast with it. And yet the sums were decreed as rent.
65. The Judges said:
In the case before the Full Bench that Regulation did not support the plaintiffs. On the contrary, it was directly opposed to their claim. In the present case the Regulation does support the plaintiff's case because the items in dispute are not arbitrary and uncertain in their character, but they are specific sums which the tenani agreed to pay to the landlords; and from the terms of their kabuliat it seems to us that the payments of these items no less than the payment of the jama itself, formed part of the consideration upon which the tenancy was created. Therefore the plaintiffs were entitled, by virtue of Regulation V of 1812, to demand and recover these items, they being in fact part of the rent agreed to be paid, although not so described. In the definition contained in the new Tenancy Act, 'rent means whatever is lawfully payable or deliverable in money or kind by a tenant or his landlord on account, of the use or occupation of the land by the tenant.' There is nothing new in this, bul it, expresses concisely what has always been understood by the word 'rent.' What is or is not an abwab, must depend upon the circumstances of each particular case in which the question arises. The Pull Bench case, upon which the District Judge relies, does not, as we have said, bar the plaintiff's claim.
66. I must respectfully dissent from this judgment, and since I do so, I think it is only due to the Judges that I should give my reasons for my dissent. In the Full Bench, as in this case, the sums were definite: in that case the sums were admitted and held to be abwabs: in this case the sums were entered among the cesses and declared to be cesses. I do not see clearly how the Regulation is opposed to the one claim more than the other. Nor does the Regulation require that the sums in dispute should be arbitrary and uncertain. The words are 'arbitrary or indefinite;' and to find that the sums are specific is not sufficient to satisfy the requirements of the law: indeed, it is opposed to two propositions laid down in the Full Bench case,-that it cannot be maintained that anything which is definite and certain is not an abwab, and that the last four lines of the Regulation invoked in support of this decision only refer to rent, and do not refer to abwabs. Nor can I bring myself to acquiesce in the proposition which, I think, is involved in the decision, that rent as defined in the Rent Act, means the consideration upon which a tenancy is created-a mere contract rent and that only. The obligation to pay rent arising out of contract is not found more often than the obligation to pay arising from law. All the tenants, whether ryots or tanure-holders, whose rents have been enhanced, and all tenants in the estates settled under Chapter X of the Rent Act, are bound, not by contract, but by law, to pay. In India the rights of landlord and tenant, as this very Act shows, are not wholly based on contract. They depend partly on contract, partly on law, partly on custom and usage. Moreover, assuming that the rent in the case I am now discussing depended on contract, I cannot agree with the view taken in the decision. In regard to the sums sued for in addition to that called rent, the plaintiff sued for rent by name, and additional sums which the lower Court found were in denomination and essence abivabs. This Court gave them as rent. It is declared by Section 74 that all impositions upon tenants under the denomination of abwab or mahtut or other like appellations in addition to the actual rent, are illegal, and the stipulation and reservations for their payments are void. So that these sums do not fall within the words, 'what is lawfully payable,' in the definition of rent. Lastly, I am unable to assent to the proposition that the definition of rent in the Rent Act includes every specific sum which the ryot has agreed to pay. That proposition seems in conflict with the decision of the Full Bench. That certainly was not the meaning of the word rent in the old law. It certainly was not the opinion of Mr. Shore, who says-
With respect to land and land revenue there are two material distinctions; first, the lands of the country were anciently distinguished by the denominations of Khalsa and Jahiri; the former may be translated exchequer lands; the latter, which are appropriated for the maintenance of Munsubdars, or the officers of the State, may be denoted assigned lands. The aggregate of the two constitutes the whole of the lands paying revenue to the State. Secondly, the distinction with respect to land revenue is that of asul or original, understood to be the standard assessment, in contradiction to abwab or taxes subsequently imposed upon it.
67. In other words, before the permanent settlement, the asul, or ground rent, was only one portion of the amount payable by, and agreed to be paid by, a ryot; the other portion was abwab.
68. This distinction, as I have pointed out above, runs not only through Regulation VIII of 1793, but also through other Regulations.
69. Regulation II of 1795, Section 3, Clause 2, runs as follows:
Second.-In the pottahs for nukdi land (land paying a specific money rent per bigha), the name and length of the measuring rod was directed to be mentioned, and as, since the year 1781, sundry new articles of abwab and charges had been introduced, the pottah provided that all new abivabs and charges introduced since the Fusli year 1187 should, from the year 119C of the same era, be considered as prohibited and relinquished, and the mal or original rent and abwab or cesses which existed in that year, viz., 1187 Fusli, being incorporated with the mal so as to form only one aggregate sum, this sum or specific rate should constitute what the ryots or cultivators of the nukdi lands were to pay per bigha.
70. Again, take the preamble of Regulation XXX of 1803 regarding the settlement of the ceded provinces, where it is said that in the proclamation regarding the settlement of these provinces, and in Regulation XXVII of 1803 [Section 53 (11) (12)], it was declared that 'all persons who may enter into engagements with Government for the public revenue, shall bind themselves to grant pottahs to their under-renters and ryots,' in which all authorized abwabs shall be consolidated with the land rent (or asul jama) in a gross sum: 'that counter-engagements shall be executed by the ryots and under-renters of a similar tenor; and nothing but what is therein expressed shall be collected from the ryots or Hinder-renters of whatever description.
71. The same view is set forth in Regulation VII of 1822, Section 9, and it cornea to this, that up to the time of making a settlement, the whole amount paid by the ryots consisted of two portions, ground rent plus abwabs; and that such of the abwabs as were allowed by the settlement were consolidated with the asul and called land rent, representing a share of the produce in contradistinction to abrvabs or cesses. In illustration of this proposition, I set forth the lease granted under the Regulation to the ryots of Benares, the province next to Behar. It is the only form mentioned in the Regulations:
A pottah or engagement and stipulation in the name of----------according to the zeyt without abwab or serf. The fota or rent for the entire year of the cultivation shall be bilmokta or according to one rate; and exclusive of that neither a daam or dhirm will be taken.
' Zeyl or annexed specification of rent,'
Nukdi or money rent.
1st. Mootry. 12 bighas (either of 3 dera ilahi or purgana bighas, or dherawat or estimated bighas) at 8 [3?] rupees 2 annas per bigha-Rs. 37-8-0.
2nd. Kuyraur, &c.; (being for the more valuable articles of cultivation), 13 bighas. (whether of 3 dera ilahi or purgana measurement or dherawat), viz:,- Rs. A. P.Sugarcane, 10 bighas, at 5 rupees 1 anna per bigha . . 50 10 0 Tobacco, '2 bighas, at 6 rupees per bigha . . . . 12 0 0 Moolee or vegetables, 1 bigha, at 2 rupees 1 anna perbigha . . . . . . . . 2 1 0___________61 11 0___________F
72. In this lease rent is used in the sense of ground rent only, and it is on this supposition that all the elaborate rules for enhancement of rent in Act VIII of 1885 are based.
73. Nor do I think the express words of the Regulations, as to the consolidation of asul and abwabs into one sum, weakened by. the argument that because the last four lines of Regulation V of 1812, Section 3, use the words in the plural, namely, 'clauses' and 'engagements,' the rent must consist of more than one lump sum. It is a general clause and describes every person and every thing in the plural, except rent. It must be borne in mind that the leases contain a specification of rates, and that the land could be let for a term, and there might be clauses in regard to these matters as in the lease set out above. Moreover, we know that in some Regulations, before Regulation V of 1812, when rent was consolidated into one lump sum, the engagements between ryots and landholders are referred to in similar terms. Examples of this are found in Regulation XIV of 1793, Section 6, and in Regulation VII of 1799, Section 15, Clause 8, where the words bear a strong resemblance to those in Regulation V of 1812, although they refer to Regulation VIII of 1793.
74. The Judges held in the case decided by the Full Bench that there was no definition of abwabs in the Regulations, and hence that it must be decided in each case whether any sum is or is not an abwab. It is true that there is no express definition of abwab in the Regulation. Yet, as the whole demand on a tenant is frequently declared to be the ground rent and abwab, the latter must be that portion of the demand not included in the ground rent. This too was the meaning attached to it in 1813, one year after the passing of Regulation V of 1812. In this year a glossary of legal terms was compiled in the East India House in London for the assistance of English readers of the Fifth Report, and in it abwab is defined as follows:
This term is particularly used to distinguish the taxes imposed subsequently to the establishment of the asul, or original standard rent, in the nature of addition thereto. In many places they had been consolidated with the asul, and a new standard assumed as the basis of succeeding impositions,
75. This is, I think, an accurate definition of the term abwab as found in the Regulations, and it should serve as a guide to us in deciding cases; and certainly, if it be correct as I think it is, the cesses in this case and in the case under discussion were abwabs.'
76. It is for these reasons I respectfully dissent from the decision in Pud ma Nund Singh v. Baij Nath Singh I.L.R. 15 Cal. 828. It seems to me to be in direct conflict with the decision 6f the Full Bench, and that both judgments cannot co-exist as an exposition of the same law. I think the sums of tehwan and salami stipulated to be paid were abwaba, and the stipulation to pay them was void.
77. I may add in support of the view of the Full Bench decision the case referred to by the Judges of the Full Bench, viz., the case of Radha Mohun Burma Chowdhry v. Gunga Pershad Chnckerbutty 7 Sel. Rep. N.S. 166. There the zemindar sued the farmers for Rs. 7,542-13-4 under the head of Zabitta batta, i.e.., an excess of a half-anna in each rupee on the amount of the farming jama under their kabuliat, dated 22nd Bysack 1231. That suit was dismissed. Three Judges of the Sudder Dewani Adalut in giving judgment held as follows:
The kabuliat provides that the farmers should pay such sums, over and above the stipulated jama, as are realized in the mofussil under the bead of Zabitta batta. Section 8, Regulation V, 1812, provides that the imposition of arbitrary or indefinite cesses, whether under the denomination of abwab, mahtut, or other denomination, is illegal, and that all stipulations of that nature should be judged by the Courts to be null and void.
78. This case, in my opinion, bears a strong analogy to the case of Pudma Nund Singh v. Baij Nath Singh I.L.R. 15 Cal. 828, and it affirms the principle that all agreements of the nature referred to in that case are null and void. The answer to the question referred to the Full Bench must, I conceive, be that the amounts sued for under the head of sarak, neg and khuruch are abwabs, and are not, therefore, recoverable, and the appeals should be dismissed.
79. I am of the same opinion.
80. I entirely agree.
81. This was a suit for rent for the years 1290 to 1293, at the rate of Rs. 22-2 annas per year. The defence was that the yearly rent was not Rs. 22-2 annas, but Rs. 18-10-6; and that the difference between Rs. 22-2 annas and Rs. 18-10-6 was made up of certain illegal cesses such as sarak, batta, neg and khuruch, which could not be legally recovered.
82. The suit was instituted after the Bengal Tenancy Act came into operation.
83. The main question upon which the parties went to trial in the Courts below was whether the rent was Rs. 22-2 annas or Rs. 18-10-6; and upon this question both the Courts below found in favour of the defendant. They were of opinion that the 'actual rent' was Rs. 18-10-6 and that although the defendant had for many years paid very nearly at the rate of Rs. 22-2 annas, still that sum was made up of the rent and illegal cesses; that these cesses had not been consolidated with the rent in accordance with the provision of Regulation VIII of 1793, and that therefore they could not be recovered as rent. The learned Judge has, however, held that batta is not an illegal cess, and it can therefore be recovered; and he has reserved to the plaintiff the liberty of bringing a separate suit for neg.
84. The plaintiff appealed to this Court and the Division Bench, before whom the case came on for hearing, has referred the following question to a Full Bench, viz.:
Whether the portions of the claim that are objected to as coming under the denominations sarak, neg and khuruch are illegal cesses, or whether they are recovera-able as rent by reason of their having been paid for a long time along with rent without any specification in the rent receipts.
85. It appears to me that upon the finding of fact arrived at by both the Courts below, the appeal ought to fail; and the question as to the legality or otherwise of the items of sarak, neg and khuruch hardly arises in this second appeal. The question between the parties was, what was the rent of the tenure held by the defendant; and it has been found that it was Rs. 18-10-6, and not Rs. 22-2 annas, and that the difference between these two figures was no part of the rent of the tenure, though paid along with it, and could not therefore be recovered as such.
86. But as the majority of the Judges who compose the Full Bench think that the question should be answered, I briefly state my views.
87. Section 74 of the Bengal Tenancy Act provides as follows:
All impositions upon tenants under the denomination of abwab, mahtut, or other like appellations, in addition to the actual rent, shall be illegal, and all stipulations and reservations for the payment of such shall be void.
88. And 'rent' is defined in Section 3 (5) to mean 'whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land.' This definition, as I understand it, expresses in different words what has always been understood by the word 'rent' viz., the consideration to be paid for the occupation of land by a tenant.
89. In this case the actual rent is found to be Rs. 18-10-6 only; and the other items claimed are what had been levied in previous years, under the denomination of sarak, khuruch, etc., in addition to the rent.
90. There is nothing to show that those items ever formed any part of the consideration for which the land was leased to the defendant; for if they did, they would, I think, be really rent, though described in the zemindari papers under other denominations. They were apparently abwabs imposed subsequent to the rent being fixed at Rs. 18-10-6; and it is not proved that the ryot at any time agreed to pay an enhanced rent including the said items as part of the rent.
91. The word abwab is not defined either in the Bengal Tenancy Act, or in the Regulations which have been repealed by that Act. When the East India Company obtained the Dewany of Bengal, they found that a variety of taxes, called abwab, mahtuts, etc., had been indiscriminately levied in addition to the asul or original ground rent by the Government from the zemindars, as also by the 'zemindars' from the ryots. And from the Reports that were submitted by the officers of the Company, after investigation into the Revenue System, it would appear that in the time of the Emperor Akbar, a tumar jama or standard assessment was fixed upon the principle of division of the gross proceeds between the sovereign and the ryots in certain proportions. This standard assessment was from time to time augmented. But notwithstanding this standard assessment, various taxes were subsequently imposed upon the ryots by the farmers of the land revenue (zemindars), as also by the subahdars (Viceroys) upon these farmers. And these taxes were called abwab jama in contradistinction to the asul jama, or original rent, at which the land was supposed to have been rated in the time of Akbar or an ancient rent fixed at some later period. The Subahdary abwabs were, it is said, generally levied upon the standard assessment in certain proportions from the zemindars, and the latter were authorized to collect them from the ryots in the same proportions; but, as a matter of fact, the zemindars were left to their own discretion and arbitrary will to make any new demands as they pleased, and there was no fixed rule or principle in levying these impositions. (See Harington's Analysis, Vol. II, pages 19, 69, and 5th Report to the House of Commons, Vol. I, pages 103, 105 to 108, 275, 292, 300 and 391).
92. In the year 1772 (14th May) a Regulation3 was passed, whereby it was declared that a settlement should be made for five years; that the farmers should not receive larger rents from the ryots than the stipulated amount of the pottahs; that the payments made by the farmers to Government should, in like manner, be ascertained and established; and that no mahtuts or assessments under the denomination of mangan, sood. etc., or any other abwab should be imposed upon the ryots, and those articles of abwab which were of recent establishment should be scrutinized, and such as might be found to be oppressive and pernicious should be abolished, and that all nuzzurs and salamis be totally discontinued (Articles 10 to 13).
93. In the same year, the Committee of Circuit, while making a settlement for five years in some parts of Bengal, found it necessary 'to form an entire new hustabud or explanation of the diverse and complex articles which were to compose the collections,' these consisting of the asul or original ground rent and the abuabs. Such abwabs which appeared to be most oppressive were abolished, and the rest were retained, they being considered part of the 'neat rents.' And in order to prevent the farmer from eluding the restriction imposed, the Committee prepared forms of pottahs which the farmers were to give to the ryots, specifying the conditions of the lease and the separate heads or articles of the rent.' (See Harington's Analysis, Vol. II, pages 19 and 20).
94. Subsequently in the year 1787 (8th June), another Regulation4 was passed, by the 50th article of which it was declared that, whereas, notwithstanding the orders of Government in 1772 prohibiting the imposition of mahtut or assessment, various taxes had since been imposed, the Collector should be enjoined to enforce that article, and that if any new taxes be imposed, he was to decree to the party injured double the amount extorted.
95. We then find that Lord Cornwallis, while recommending a Permanent Settlement of Revenue in Bengal, stated in his Minute, referring to Mr. Shore's Minutes on the subject, that-
The rents of the ryots, by whatever rule or custom they may be demanded, shall be specific as to their amount; that the landlords shall be obliged to grant pottahs, in which this amount shall be inserted, and that no ryot shall be liable to pay more than the sum actually specified in the pottak. 5
96. And -
every abwab or tax imposed over and above that sum is not only a breach of that agreement but a direct violation of the established laws of the country.'6
97. 'Further on he says:
The zemindar may sell the land, and the cultivator must pay to the purchaser. Neither is prohibiting the landholder to impose new abwabs or taxes on the lands in cultivation tantamount to saying to him that he shall not raise the rents of his estate. The rents of an estate are not to be raised by the imposition of new abwabs. 'Harington's Analysis, Vol. II, 184'. Fifth Report, Vol. I, 615).
98. The policy of the Government then was, as I gather from what has been already noticed, that whatever may be payable as rent should be specified in the pottah to be granted by the landlord, and that no new abwabs should be imposed.
99. We then find that in Section 54 of Regulation VIII of 1793, it was laid down that-
the impositions upon the ryots under the denomination of abwab, mahtut and other appellations, from their number and uncertainty, have become intricate to adjust, and a source of oppression to the ryots; all proprietors of land and dependent talukdars shall revise the same in concert with the ryots and consolidate the whole with the asul into one specific sum.
100. The next Section 55 provides that-
no actual proprietor, or dependent talukdar, or farmer of land, shall impose any new abwab or mahtut upon the ryots.
101. Section 57 lays down that-
the rents to be paid by the ryots, by whatever rule or custom they may be regulated, shall be specifically stated in the pottah, which in every possible case shall contain the exact sum to be paid.
102. Section 58 provides that the proprietor of the land or dependent talukdar shall prepare the form of pottahs to be given to the ryots, and obtain the approbation of the Collector. Section 61 says that in the event of any claims being preferred by any proprietor or talukdar on engagements wherein the consolidation of the asul, abwab, etc., shall appear not to have been made within the time limited by Section 54, they are to be non-suited.
103. This was the law until the year 1812. The object that the Legislature had in view in 1793 was to put down the imposition of new abwabs and to make it compulsory upon the landlords to consolidate the then existing abwabs with the rent. And probably, they intended also that there should be but one sum including all the items of payment, fixed and specified in the pottah as the rent. But then Section 3, Regulation V of 1812, in the first place rescinds so much of the Regulations of 1793, which provided that the proprietors and talukdars should prepare forms of pottahs, and obtain the sanction of the Collector thereto, and authorizes them to grant pottahs in such forms as the con-. tracting parties might agree to, and it then lays down as follows:
Provided, however, that nothing herein contained shall be construed to sanction or legalize the imposition of arbitrary or indefinite cesses, whether under the denomination of abwab, mahtut, or any other denomination. All stipulations or reservations of that nature shall be adjudged by the Courts of Judicature to be null and void; but the Courts shall notwithstanding maintain and give effect to the definite classes of the engagements contracted between the parties, or, in other words, enforce payment of such sums as may have been specifically agreed upon between them.
104. It will be observed that the section prohibits the imposition of arbitrary and indefinite cesses, and says that any reservation or stipulation of that nature shall be null and void. And the words which follow are to my mind very significant as showing what they really intended to lay down. I think their intention was to provide that if the parties agree to any specific and definite sum or sums as consideration for the lease, such agreement shall be enforced. The expression such sums as may have been specifically agreed upon 'should be read as it were in contradistinction to the words ' imposition of arbitrary or indefinite cesses.' As I have already stated, when the East India Company assumed the Dewany, they found after enquiry that a variety of taxes under the denomination of abwab, mahtut, etc., were being indiscriminately levied by the zemindars according to their own will and discretion without any fixed rule or principle. And it was the policy of the Government to put a stop to such arbitrary and indefinite impositions, and to prohibit the levying of new abwabs. If the construction I have put be not correct, I fail to see with what object the last portion of the section beginning with the words 'but the Courts shall notwithstanding, etc.' was put in, for accepting the opposite view to be correct, these words would, I think, be superfluous.
105. In the case of Chultan Mahton I.L.R. 11 Cal. 175, decided by the Full Bench of this Court, Mr. Justice Mitter (and his judgment was concurred in by Tottenham and Pigot, JJ.) observed as follows:
Although the Regulations did not clearly define what an abwab is, still I think that it cannot be maintained that anything which is definite and certain is not an abwab under the Regulations, although the parties to the contract call it so. It seems to me that the Regulations, without defining clearly what an abwab is, left this question to the determination by the Court in each case upon the evidence. I cannot find anywhere in the Regulation the precise definition of the word abwab, which would justify me to treat the disputed items of claim as part of the specified rent, although the plaintiffs claim them in the plaint and entered them in the zamindary accounts as abwabs.
106. In that case the plaintiff claimed to recover a certain amount as rent, as also certain other items as 'customary abwabs' as having been prevalent in the village from time immemorial. It was contended that these abwabs had existed from before the Permanent Settlement, and were therefore recoverable, notwithstanding the provisions of Section 54, Regulation VIII of 1793, and further that they were not abwabs, although claimed as such in the plaint, but part of the rent. The Full Bench negatived both these contentions, and Mr. Justice MITTER held, as already mentioned, that what was an abwab must be left to the determination by the Court in each case upon the evidence; but that in the case before them he could not hold that the disputed items were part of the rent. No doubt that learned Judge in a subsequent passage, while referring to the last four lines of Section 3, Regulation V of 1812, viz., 'but the Courts shall notwithstanding maintain and give effect to the definite clauses in the engagements contracted between the parties, or, in other words, enforce payment of such sums as may have been specifically agreed upon between them,' says that 'the words 'sum specified' refer to the amount of the rent specified,' But this passage must be read with what had preceded, and which I have already referred to.
107. The Judicial Committee in affirming that decision observed as follows:
The first question seems to be this: are these payments over and above rent, properly so called, abwabs within the meaning of the word as used in the Regulation VIII of 1793?
They are described in the plaint as 'old usual abwabs,' and they are described as abwabs in the zemindary accounts. It appears to their Lordships that the High Court wore perfectly right in treating them as abwabs and not as part of the rent. Unquestionably they have been paid for a long time-how long does not appear. They are said to have been paid according to long-standing custom; whether that means that they were payable at the time of the Permanent Settlement or not is not plain. If they were payable at the time of the Permanent Settlement, they ought to have been consolidated with the rent under Section 54, Regulation VIII of 1793. Not being so consolidated they cannot now be recovered under Section 61 of that Regulation. If they wore not payable at the time of the Permanent Settlement, they would come under the description of new abwabs in Section 55; and they would be in that case illegal. * * * '
108. What the Judicial Committee say is simply this: plaintiff expressly claims these items as abwabs; if they existed at the time of the Permanent Settlement, they should have been consolidated with the rent under Section 51, Regulation VIII of 1793; if they were not payable at that time, they are new abwabs and therefore illegal under Section 55. And they further say that the High Court were right in treating them as abwabs and not as part of the rent.
109. I do not understand that they intended to go any way beyond what Mr. Justice MITTER said in his judgment, and to lay down, as it is said they did lay down, that nothing, save and except one sum, including every item of payment, could be recovered as payable for the occupation of land; and that an agreement to pay anything beyond that sum, although it might be a lawful consideration for the lease, could not he enforced.
110. It appears to me that if in any given case the Court finds that any particular sum specified in the lease or agreed to be paid, is a lawful consideration for the use and occupation of any land, that is to say, if it is really part of the rent, although not described as such, it would be justified in holding that it is not abwab, and is recoverable by the landlord.
111. And it is somewhat from this point of view that the case of Pudma Nund Singh I.L.R. 15 Cal. 828 has decided. That was a case of a permanent mokurari lease executed before the Bengal Tenancy Act, and under which the defendant agreed to pay a certain amount as rent, and two other items of Rs. 9 and 2 respectively, designated as tehwari and salami towzi. The Division Bench (TOTTENHAM and GHOSE, JJ.), before which the case came on for hearing, proceeding upon the provisions of Section 3, Regulation V of 1812, held that the items objected to, viz., tehwari and salami, were recoverable, because they were not arbitrary and uncertain in their character, but specific sums which the tenant had agreed to pay; and because these sums formed part of the consideration for the lease, and were in fact part of the rent agreed to be paid, though not described as such. The case was decided upon the terms of Section 3, Regulation V of 1812, and not with reference to Section 74 of the Bengal Tenancy Act, the lease having been executed before that Act was passed. The judgment in the case was delivered by TOTTENHAM, J., who was one of the Judges who formed the Full Bench in the case of Chultan Mahton. And I may here observe that it was not intended thereby to hold that anything that is not arbitrary and indefinite is recoverable, although it may not be part of the rent. In that case, both the elements were supposed to be present, viz., that the items in question were not of an arbitrary or indefinite character; and secondly, they formed part of the rent agreed to be paid. I am, however, bound to say that having since more carefully considered the subject, I have come to the opinion that we were not right in holding that the items of tehwari and salami were part of the rent stipulated to be paid under the lease. They were, I now think, abwabs.
112. As regards the items of sarak and khuruch claimed in the case now before us, it seems to me that, although they had been realized in previous years at certain rates, still the amounts are not definite, and they may vary according to circumstances; and if the rent is not permanent, they would be augmented with the increase of rent-Radha Mohun Surma Chowdhry v. Gunga Pershad Chuckerbutty 7 Sel. Rep. N.S. 166. But however that may be, the question is whether under the Bengal Tenancy Act (Section 74) they may be recovered. The Judge of the Court below has found, as a matter of fact, that they are no part of the 'actual rent,' and it follows therefore that they are not recoverable.
113. As regards neg, I should also think that it cannot be recovered in this case, because it is no part of the rent.
1 Colebrooke's Supplement, p, 190. Fifth Report, Vol. I, 4. Harington's Analysis, Vol. II., 12.
2 Colebrooke's Supplement, pp. 258-260. Fifth Report, Vol. I, 15. Harington's Analysis, Vol. II, 53.
3 Colebrooke's Supplement, 190, Fifth Report, Vol. I, 4. Harington's Analysis, Vol. II. 13.
4 Golebrooke's Supplement, 253-26G. Fifth Report, Vol. I, 15. Harington's Analysis, 117. Vol. II. 53.
5 Harington's Analysis, Vol. II. 183. Fifth report, Vol. I. 614.
6 Harington's Analysis, Vol. II. 184, Fifth Report, Vol. I. 615.