1. These twenty-one appeals arise out of as many applications, made by landlords under sections 105 and 105A of the Bengal Tenancy Act, for settlement of fair and equitable rent in respect of the lands held by their tenants. In the Record of Rights, as finally published, entries had been made to the effect that each tenure was held at a fixed rate of rent. The tenants accordingly contended that the rents were not liable to enhancement. The Assistant Settlement Officer gave effect to this contention, subject to the reservation that excess lands were liable to be assessed with additional rent. Upon appeal, the Special Judge has reversed this decision, and has assessed fair and equitable rent, inasmuch as the tenures were, in his opinion, not held at rates of rent fixed in perpetuity. In this Court, the decision of the special Judge has been assailed on a fourfold ground, namely, first, that upon a true construction of the grant in each case, it should have been held that the tenure was held at a rate of rent fixed in perpetuity; secondly that the tenants were entitled to the benefit of the presumption formulated in Section 50 of the Bengal Tenancy Act; thirdly, that the tenures were protected from enhancement, as they had been continuously in existence and had been held at a uniform rate of rent from a date anterior to the Permanent Settlement of 1793; and, fourthly, that if the rent was liable to enhancement, the provisions of Section 7 of the Bengal Tenancy Act must be strictly followed. It is plain that if the first of these grounds be substantiated, the others do not require examination.
2. There is no controversy that the lands of the disputed tenures were originally comprised in a revenue-paying estate which was permanently settled in 1793. The proprietors defaulted, with the result, that the estate was sold for arrears of revenue on the 29th March 1834 when the Government became the purchaser. The lands were kept under the direct management of the Revenue Authorities from 1834 to 1861, when a permanently-settled estate was created in favour of the predecessors of the present plaintiffs. In 1836, while the lands were under the direct management of the Revenue Authorities, settlements were made with tenure-holders who had been in occupation, in many instances, from before the date of the Permanent Settlement of 1793. The question thus arises, whether the rents so settled in 1836 are liable to enhancement or must be deemed to have been fixed in perpetuity by the grants then made. In the construction of these grants, we are hot concerned with the points whether the tenures were in fact in existence in 1793, whether they had been held at a uniform rate of rent since then, or whether by application of Section 50 of the Bengal Tenancy Act they may be presumed to have been so in existence and held at a uniform rate of rent during the period mentioned nor are we called upon to consider, in connection with the question of construction, whether the tenures continued in fact and in law, notwithstanding the sale for arrears of revenue. The construction of the grants must depend upon the interpretation of all the terms of each instrument, and, except in a case to ambiguity, extrinsic evidence would not be admissible; see North Eastern Railway v. Hastings (Lord)(1900) A.C. 260 : 69 L.J.Ch. 516 : 82 L.T. 429 : 16 T.L.R. 325; Hebbert v. Purchas (1871) 3 P.C. 605 : 7 Moo. P.C. (N.S.) 468 : 40 : L.J. Ecc. 33 : 19 W.R. 898 : 17 E.R. 177; Secretary of State for India v. Narendra Nath Mitter 61 Ind. Cas. 91 : 32 C.L.J. 402. As pointed out by the Judicial Committee in Upadrashta Venkata Sastrulu v. Divi Seetharamudu 51 Ind. Cas. 304 : 46 I.A. 123 : 30 C.L.J. 441 : 17 A.L.J. 725; 37 M.L.J. 42 : 21 Bom. L.R. 925 : 26 M.L.T. 175 : 10 L.W. 633 : 24 C.W.N. 129 : 43 M. 166 : 2 U.P.L.R. (P.C.) 16 (P.C.) and Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi 68 Ind. Cas. 538 : 31 M.L.T. 54 : 16 L.W. 102 : 45 M. 586 : (1922) M.W.N. 749 : 43 M.L.J. 640 : (1922) A.I.R. (P.C.) A.I.R. (P.C.) 292 (P.C.) each case must be considered on its own facts; in order to ascertain the effect of the grant resort must be had to the terms of the grant itself and to the whole circumstances so far as they can now be ascertained. Nor does the question of burden of proof arise; for as observed in Seturatnam Aiyar v. Venkatachala Gounden : (1920)22BOMLR578 when the entire evidence on both sides is once before the Court, the debate as to onus is purely academical; the controversy has passed the state at which discussion as to the burden of proof is pertinent; the relevant facts are before the Court and all that remains for decision is, what inference should be drawn from them.
3. The grant in each case was made by a document divisible into two parts; the first shows the details of assessment, the second sets out the terms of the settlement. In some instances, the grant included lands described as laik patit, that is, culturable fallow, in other cases, all the culturable lands were under cultivation and there was no culturable follow. The cultivated lands were, in all cases, assessed at the full rate from the commencement; the culturable fallow was not assessed with rent during the first two years. Consequently, in the first class of cases, the full rent did not become payable till after the expiry of two years; in the second class of cases, the full amount became leviable from the commencement. We set out here a specimen of a grant of each type:
Signed by mark
Nara Narayan Ray, Daulat.
Down bundobust taluqdari in respect of Taluq Hashim Khasim Mullick, the owners whereof are Alabuksh, Koresh, Pana and Daulat, lying within the Government Khas Mahal Chasla Chamrakhola, Pargana Gopalpur, Mirjanaga, Settlement whereof was recently granted at the time of Srijut Babu Nara Narayan Ray, Deputy Collector, District Bhulua from the year 1243 B.S. and confirmed by the Commissioner. Finis. Dated the 31st August 1836 corresponding to the 17th Bhadra, 1243 B.S.
Details Quantity of Rate per Amount of
Land Kani Jama in
The bundobust is from the year 1243 Company's
B.S. Total quantity of land as coin.
measured by the Amins with a rod of
16 cubits of 18 inches to a cubit,
12 such rods in length & 10 such rods
in breadth making a kani and 16
kanis a drone. .. 9 k. 1 gd. 3 kr. 2 kt.
Deduct Garlaiak Patit .. 0 k. 3 gd. 3 kr. 1 kt.
Tank and Ditches &c. 0. 10 gd. 1. 0.
0. 14 gd. 0. 1kt.
8. 7 gd. 3. 1 kt.
Remission allowed as held in abeyance
on account of Laik Patit 0. 4. 0. 1 '
Hasil 8. 3. 3. 0.
Deduct at the rate of 3 kanis 4 gds. per
drone according to the taluqdari practice 1. 12. 3. 0 '
------------------------ Rs. as. p. Rs. as. p.
6. 11 gds. 0. 0 kt. 3 3 3 20 15 8
Add Laik-abadi which was held in
abeyance ..0 k-4 gds-0-1 krt.
Deduct at the usual rate of 3 Kanis 4 gds.
per drone ..0 0 3 1 '
0 0 3gds 1 0
Remission allowed as bearing no rent
from 1243 B.S. to 1244 B.S. Full amount
(of rent) for 1245 B. Section and each
year following .. .. .. Rs.3-3-3 Rs.0-8-4
----------------------- --------- ---------
6 k. 14 gds. 1 k. 0-0-0 21-8-0
Jama from the year 243 B.S. up to the year 1244. B.S. Jama per annum from
Per Year the year 1245 BS.
Jama brought forward Rs. 20-15-8. Rs. 21-8-0
Details of Kisibundi.
Rs. as. p. Rs. as. p.
Kist Baisakh 0 12 0 0 12 0
Kist Jaistha 0 12 0 0 12 0
Kist Ashar 1 8 0 1 8 0
Kist Sraban 3 0 0 3 0 0
Kist Bhadra 3 0 0 3 0 0
Kist Ashin 3 0 0 3 0 0
Kist Kartik 2 0 0 2 0 0
Kist Agrahayan 3 0 0 3 0 0
Kist Pous 3 8 0 3 8 0
Kist Magh 0 7 8 1 0 0
20 15 8 21 8 0
Remaining in possession at a total jama of Rs. 20-15-8 in Company's coin per year from 1243 B.S. to 1244 at the full amounts of jama of Rs. 21-8 in Company's coin per year from 1245 B.S., and for each year, (following), we shall pay the foresaid amounts amounts of malguzari, year after year and month after month, as per the Kistibundi. We shall abide by the laws that are now in force and may be brought into operation in future. We shall not, allow any bad character to reside in the aforesaid-tenor allow any one to manufacture illicit salt, and shall not do anything contrary to law and regulations; if we do, we shall be held responsible for the same. All profits and loss accruing through, draught, inundation, death and desertion, and providential visitations. &c.; shall be ours and shall have no concern with Government. Finis. Dated as above.
Having received a counterpart of this
Dowl to my satisfaction I grant this
receipt. Dated the 12th December,
1836. Sd. Apsaruddi, on behalf of
To |Sd. By mark
Nara Narayan Roy, | Sadaraddi,
Deputy Collector, | Tomijuddi,
District Bhulua. | Moniraddi.
Dowl bandobast taluqdar in respect of Taluq Fatey Manu within Government Khas Mehal Chakley Chamrakhola, Perganah Gopalpur, Mirzanagore, the owners whereof are Sadaraddi, Tomijaddi andMoniraddi, by virtue of recent Settlement granted at the time of Babu Nara Narayan Roy, Deputy Collector, District Bhulua, and confirmed by the Commissioner from the, year 1243 B.S. Finis. Dated 31st August 1836 corresponding to 17th Bhadra 1243 B.S.
Description. Total quantity Rate per Kani. Amount of rent in
of land Company's coin.
The settlement is from the year
1243. B.S. Total quantity of land
as measured by the Amins with a
rod of 16 cubits of 18 inches to a
cubit, 12 such rods in length and
10 such rods in breadth making a
Kani and 16 Kanis a Drone. k. gd. kr. kt.
2 11 1 1
Deduct Gar Laek Patit ..0 0 3 1
Tank and ditches. &c. ..0 14 2 0
0 15 1 1
1 16 0 0
Remission allowed as held in abey-
ance on account of laek patit ..1 16 0 0
Hasil ..1 16 0 0
Deduct at the rate of 3 kanis 4 gds.
per drone according to the taluqdari
practice ..0 7 0 2 Rs. a. p. Rs. a. p.
---------------- 3 3 3 4 9 11
1 8 3 1
Full rate of rent from the year 1243
B.S.and for each year (following) jama
brought forward .. Rs. 4 9 as. 11 p.
Details of Kists
Kist Ashar Re. 1 0 as. 0 p.
Kist Bhadra 1 4 0
Kist Kartick 1 8 0
Kist Pous 0 13 11
4 9 11
A taluqdari settlement is made with us-at the full amount of annual jmma of rupees 4 annas 9 and pies 11 from the year 1243 B.S. and for each year(following) Being in possession according to the practice of the taluqdars, we shall pay the aforesaid amounts of malguzari; year after year, month after month, as per the kistbandi. If, we default any kist, we shall pay interest according to law. We shall abide by the laws and regulations now in forcer and. also those that may come into operation in future. We shall not allow any bad character to live within the taluq aforesaid nor allow, any one to manufacture illicit salt nor shall we do anything contrary to laws and regulations If we do so we shall be answerable for the same. All profits and losses accruing from droughts, inundation, death and desertion, and providential visitation, &c;, shall be ours and these shall have no concern, with Government. Finis. Dated as above.
Having received to my satisfaction
a counterpart of this Dowl, I grant
this receipt. Finis. Dated 29th,
Sd. By mark,
4. It will Be observed that in both 'A' and 'B' deduction was allowed for barlaik patit, that is unculturable follow; there was also a deduction of 3 Kanis gandas per drone, that is 20 per cent, according, to talukdari practice. In 'A,' deduction, was, further allowed for, laik patit, that is culturable fallow; but in 'B,' there was no such deduction, because all the culturable lands were hasil, that is, cultivated. The expression in 'A' which has been rendered as 'full amount of rent for 1245 B.S. and each year. following' is in the vernacular, 'San 1245 Sal O harsal purdastur.' means 'full customary rate', the word 'harsal' means 'all years to come.' The two words taken together clearly show that the full rate was intended to be in operation so long as the tenure might subsist. Later on in the. document, we find the rent for 1243 and 1244 described as saliana jama, that is, annual rent or rent, per year. This is followed by the rent for 1245, which is described as jama kamal, meaning the full amount of amount of rent or the highest rent leviable. The expression jama kamah is preceded by the word saliana and is followed by the word. M. The three terms taken together unmistakably, point to the conclusion that the rent payable in 1245 was the highest rent ever leviable. When we turn to 'B' we come across similar expressions which indicate fixity of rent. On a consideration, then of the terms of the grants, we come to the conclusion that the disputed tenures are held, at fixed rates of rent; but the total amount payable in respect of each tenure varies with the area as the settlement was made on the basis of area determined by measurement according to a carefully specified standard.
5. We may and that our attention has been the judicial decisions which are helpful only in so far as they formulate canons for the interpretation of documents of this description. Amongst these, special mention may be made of the decisions, of the Judicial Committee in Baboo Dhunput Singh v. Gooman Singh 11 M.I.A. 433 : 9 W.R. 3 (P.C.) : 2 Sat : P.C.J. 309 : 2 Suth P.C.J : 92 : 20 E.R. 164; Rajah Suttosurrun Ghosal v. Moheshchunder Mitter 12 M.I.A. 263 : 2 B.L.R. P.C. 23 : 11 W.R. P.C. 10 : 2 Suth P.C.J : 180 : 2 Sar. P.C.J. 420 : 1 Ind. Dec. (N.S.) 497 : 20 E.R. 338. Soora Soonderee Dabea v. Golam Ali 19 W.R. 141 : 15 B.L.R. 125 note (P.C.); Port Canning and Land Improvement Co. Limited v. Katyani Debi : (1920)22BOMLR437 : which were applied by this Court in Huro Prasad Roy Chowdhry v. Chundee Churn 9 C. 505 : 12 C.L.R. 251 : 4 Ind. Dec. (N.S.) 984 and Robert Watson & Co. v. Radha Nath Singh 1 C.L.J. 572. Much stress was, however, laid on behalf of the respondents on the decisions in Bhurut Chunder Aitch v. Gour Monee Dossee 11 W.R. 31 : 2 B.L.R.A.C.J. 266n. : 1 Ind. Dec. (N.S.) 825 and Kaseemuddee Khondkar v. Nadde Ali 11 W.R. 164 : 2 B.L.R.A.C.J. 265 : 1 Ind. Dec. (N.S.) 825 where Loch and Hobhouse, JJ., declined to follow the decision of Bayley and Phear, JJ., in Golam Ali v. Baboo Gopal Lal Thakoor 9 W.R. 65 which was subsequently affirmed by the Judicial Committee in Soorasoonderee Dabea v. Golam Ali 19 W.R. 141 : 15 B.L.R. 125 note (P.C.). The decision of the Judicial Committee in Ramasoondery Dassyah v. Radhika Chowdhrain 13 M.I.A. 248 : 13 W.R.P.C. 11 : 4 B.L.R.P.C. 8 : 2 Suth P.C.J. 293 : 2 Sar. P.C.J. 524 : 20 E.R. 544 does not advance the case for the respondents. No doubt, a suit to enhance rent proceeds on the presumption that a Zemindar holding under the Permanent Settlement has the right, from time to time, to raise the rents of all the rent-paying lands within his Zemindari, according to the Pargana or current rates, unless either he is precluded from the exercise of that right by a contract binding on him or the lands in question can be brought within one of the exemptions recognised by Regulation VIII of 1793. Consequently, in each of these cases, the nature of the tenure and the conditions under, which it is held is the primary question to be determined with reference to the documents and the circumstances disclosed therein. Here we have the grants themselves, and they show, in our opinion, that the rate of rent was fixed in perpetuity. It is unnecessary, in these circumstances, to rely upon the doctrine that fixity of rent may be presumed from uniformity of rent for a long series of years; Golab Misser v. Kumar Kalanand Singh 6 Ind. Cas. 217 : 12 C.L.J. 107 : 14 C.W.N. 884; Nityananda Pal v. Nanda Kumar 10 Ind. Cas. 163 : 13 C.L.J. 415; Ram Dayal Giri v. Midnapur Zemindan Co. 7 Ind. Cas. 785 : 15 C.W.N. 263 The question is, as put in Upendralal Gupta v. Jogesh Chandra Roy 38 Ind. Cas. 56 : 22 C.W.N. 275 which was applied in Jogesh Chandra Roy v. Mokbul Ali 54 Ind. Cas. 850 : 30 C.L.J. 140, : 23 C.W.N. 945 whether the landlord has precluded himself by his grant from claiming rent at an enhanced rate. The answer, on the documents in these cases, must be in favour of the tenants.
6. It was finally suggested that there was indication in the evidence that the rate of rent had varied from time to time, and that on the principle recognised in Bamapada Roy v. Midnapur Zemindary Co. 16 Ind. Cas. 376 : 16 C.L.J. 322 the tenures should be deemed to have been held at enhanceable rents. There is, however, no foundation for this contention. The total amount of rent in each case must, as we have seen, be dependent on the area. But even if we assume that the total rent has varied, it has not been proved that the rate of rent has varied. We conclude, accordingly, that the Assistant Settlement Officer correctly held that the tenures were held at fixed rates of rent. In this view, no other question requires examination.
7. The result is that these appeals are allowed, the decrees made by the Special Judge set aside and those made by the Assistant Settlement Officer restored, with costs both here and in the lower Appellate Court. We assess the hearing fee in this Court at one gold mohur in each case.