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Aga Mirza Ahmad and ors. Vs. Bhudar Chandra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 890 of 1948
Judge
Reported inAIR1952Cal23
ActsTenancy Law; ; Bengal Tenancy Act, 1885 - Sections 104G, 104H, 104H(1), 104H(2), 104H (3) and 111A
AppellantAga Mirza Ahmad and ors.
RespondentBhudar Chandra
Appellant AdvocateN.C. Sen Gupta and ; Narendra Nath Dalal, Advs.
Respondent AdvocateSitaram Banerjee, ; Joy Gopal Ghose, ; Sushil Chandra Dutt, ; Nripal Chandra Rai Choudhury, ; Nirmal Chandra Chakravarty and ; Purnendu Sekhar Basu, Advs.
Cases ReferredAga Mirza Ahmed v. Subodh Chandra
Excerpt:
- .....of the defendant.2. one of the contentions between the parties is what is the rent payable under this lease? shortly before the expiration of the term of the settlement in favour of the plaintiffs' predecessors proceedings under ch. x pt. ii of the bengal tenancy act were proceeded with and a draft record of rights was prepared. in the draft record of rights under the column headed as 'rent' a sum of rs. 3043-3-0 was shown to be payable. thereupon the defendant raised an objection under section 104e of the bengal tenancy act. this objection was overruled by the revenue officer, and thereafter the defendant preferred an appeal under section 104g of the bengal tenancy act. this appeal was disposed of by the director of land records on 4-6-1942. in the course of his.....
Judgment:

Das, J.

1. This is an appeal by the plaintiffs in a suit purporting to be under Section 104H of the Bengal Tenancy Act. The facts of this case are that the predecessors-in-interest of the plaintiffs obtained a settlement of lot No. 88 Touzi No. 145S from the Government, the settlement to expire on 31-3-1942. Thereafter on 28-8-1869, the plaintiffs' predecessors-in-interest granted a lease in favour of the predecessor-in-interest of the defendant.

2. One of the contentions between the parties is what is the rent payable under this lease? Shortly before the expiration of the term of the settlement in favour of the plaintiffs' predecessors proceedings under Ch. X Pt. II of the Bengal Tenancy Act were proceeded with and a draft record of rights was prepared. In the draft record of rights under the column headed as 'Rent' a sum of Rs. 3043-3-0 was shown to be payable. Thereupon the defendant raised an objection under Section 104E of the Bengal Tenancy Act. This objection was overruled by the Revenue Officer, and thereafter the defendant preferred an appeal under Section 104G of the Bengal Tenancy Act. This appeal was disposed of by the Director of Land Records on 4-6-1942. In the course of his judgment the Director of Land Records observed that the rent of the tenure was fixed in perpetuity at Rs. 700-8/-, that the rent assessed under Section 104 at Rs. 3043/3/- was so assessed only for the purposes of settlement of revenue, that the contractual rent of Rs. 700/ 8/- is binding between the parties as the contract was made before the passing of the Bengal Tenancy Act.

3. It appears that the settlement record was thereupon corrected and in the 'Remarks' column an entry was made to the following effect :

'Rent is fixed under Section 104 from 1-4-1942. The total rent under the potta of 28-8-1869 is Rs. 700/8/- and that this potta is not binding on the Government.'

4. The certificate of final publication of the Record of Rights was published on 4-12-1942. The plaintiffs raised this suit on 2-6-1943. In the plaint the plaintiffs prayed for the following declarations : (a) that the rent of the tenancy in question was not fixed in perpetuity by the 'alleged potta of 28-8-1869 or any other potta whatsoever and that the defendant is liable to pay rent at Rs. 3043/3/- as mentioned in the Khatian No. 3; (b)that the entry in Kha-tian No. 3 about the said potta of 28-8-1869, that the total rent of Rs. 700/8/- is payable thereunder, is not binding on the plaintiffs; and that similar references to the said potta in the judgment of the learned Director of Land Records are not binding on the plaintiffs.

5. The defence to the suit was that the suit as framed was not maintainable and that the proper rent payable is that fixed in the potta. Both the Courts below have dismissed the plaintiffs' suit. The Additional District Judge in the course of his judgment has observed that the question of the construction of the potta is not material in the present case. He has however held that the Settlement record has to be read as a whole and that on a pxoper interpretation of the Record of Rights it must be held that the rent was fixed at Rs. 700/8/- in terms of the potta. The plaintiffs have preferred this appeal.

6. Dr. Sen Gupta appearing for the appellants has first contended that the lower appellate Court should have construed the potta and should have ascertained what was the rent properly payable under the potta, and what was the status of the defendant on a proper construction of the said potta? He has also contended that the entries in the remarks column as made in the Settlement Record of Rights and the observations in the judgment of the Director of Land Records are unauthorised and that the only entry as to rent is that contained in the column headed as 'Rent' and should be regarded as Rs. 3043/3/-. In support of his contention he has referred us to a decision of this Court in the case of 'Aga Mirza Ahmed v. Subodh Chandra', 55 C W N 70. He has contended on the authority of this decision that the plaintiffs are entitled to a declaration that Rs. 3043/3/- is the rent payable by the defendant to the plaintiffs.

7. On behalf of the respondent Mr. Banerjee has contended that the effect of the order of the Director of Land Records was to settle the rent on the terms of the potta and that the entry as regards the rent in the column headed as 'Rent' should be read in the light of the decision of the Director of Land Records. He has also contended that the present, suit cannot be regarded as a suit framed under Section 104H of the Bengal Tenancy Act and that the reliefs under Section 104H are barred by limitation.

8. The first question which arises for our decision is what is the scope of the present suit. In the trial Court both parties proceeded on the footing that the suit was not one under Section 104H of the Bengal Tenancy Act. It was the common case of the parties that the suit was really one under Section 42 of the Specific Relief Act and Section 111A of the Bengal Tenancy Act. I have already referred to the prayers made in the present plaint. Under Section 104H (3) the plaintiff is entitled to claim relief only on the grounds mentioned in Clauses (a) to (h). A prayer for a declaration as to the effect of the potta is outside the scope of the grounds mentioned in Clauses (a) to (h). Prayers (b) and (c) of the plaint no doubt come within Clause (h) of Section 104H (3) as was held in the decision already referred to.

9. The question is whether in a suit framed under Section 104H the plaintiff can tack on to the prayers which can properly be made under Clauses (a) to (h) any other prayer for a declaratory relief. In the case of 'Chandra Singh v. Midn'apore Zamindary Co.', 46 CWN 802, the Privy Council observed that a suit under Section Ill A of the Bengal Tenancy Act is not alternative to a suit under Section 104H. Section 104H contemplates a special class of suits, the scope of which is defined in that section. Such a suit under Section 104H may be instituted by any person aggrieved by an entry of rent in a settlement rent rule prepared under Sections 104A to 104F and entered in the finally published Record of Rights. Such a suit has to be instituted within six months from the date of the certificate of final publication of the Record of Rights or of the date of the disposal of the appeal under Section 104G of the Bengal Tenancy Act. As I have already said the grounds on which such a suit will lie are stated in Section 104H (3). I see no reason why such a composite suit will not lie. The plaintiff in such a suit will however get the relief to which he may be entitled.

10. On behalf of the respondent Mr. Banerji however argued that the present suit regarded as a suit under Section 104H is barred by limitation because time runs from the date of the disposal of the appeal under Section 104G irrespective of the question whether the Record of Rights was finally published or not. Mr. Banerjee contended that once an appeal under Section 104G was disposed of, time began to run and the disposal of the appeal gave rise to a cause of action to the unsuccessful party to institute a suit under Section 104H.

11. This contention cannot be accepted. In the first place Section 104H (2) lays down a rule of limitation. Such a rule cannot be regarded as giving rise to a cause of action. The right to institute a suit depends on the terms of Section 104H (1) which confers on a party aggrieved by an entry of rent a right to institute a suit. Unless there is an entry of rent recorded in a finally published Record of Rights, the party is not aggrieved. It is only the publication of the Record of Rights which gives rise to a cause of action and the person aggrieved by the entry may then institute a suit. Section 104H (2) no doubt lays down two periods of limitation, namely, that time would begin to run either from the date of the certificate of final publication of the Record of Rights or from the date of disposal of the appeal under Section 104G. It is also true that the section does not say expressly that limitation would run from whichever is the later date. We must however construe Section 104H (2) in the light of Section 104H (1). It is not possible to hold that limitation would begin to run although the right to bring a suit under Section 104H (1) has not accrued. Section 104H (1) and Section 104II (2), can be given a consistent meaning if we hold that the latter part of Section 104H (2), which makes time to run from the date of disposal of the appeal, applies to cases where the final publication of the record has been made, but an appeal under Section 104G is outstanding. In such a case the party concerned may well await the decision of the Revenue authority on appeal under Section 104G. The remedies given to the plaintiff under Section 104G and Section 104H are alternative remedies. If be pursues his remedy under Section 104G he can well await the decision of the appropriate authority, because if he succeeds therein, he may have no grievance and may not be required to file a suit under Section 104H. It is only when an adverse decision is reached in the appeal under Section 104G that he may have cause for complaint and in such a case the Legislature has given him further time to file a suit under Section 104H. The omission of the words 'whichever is later' in Section 104H (2) is not material because of the general rule that where the law provides for two periods of limitation, a party aggrieved can avail himself of the longer period. In my opinion the contention of Mr. Banerjee that the right to sue would accrue as soon as the appeal under Section 104G is disposed of, quite apart from the question whether the final publication of the Record of Rights has been made or not, cannot be accepted.

12. Section 104J to which our attention was drawn does not really assist Mr. Banerjee's contention. It merely gives finality to the settlement of rent made under Sections 104A to 104F, or to a settlement of rent under Section 104G. The-finality is subject of course to the provisions of Section 104H. In my opinion the fact that Section 104J refers to settlement of rent under Sections 104A to 104F or under Section 104G, rather supports the View which I have taken, namely, that the party may be aggrieved either by the final publication of the Record of Rights or by the decision of the appellate officer under Section 104G, and may thereafter bring a suit under Section 10411.

13. In the present case the suit was filed on June 2, 1943 and it was within six months from the date of the certificate of final publication which was on December 4, 1942. It is of course beyond six months of the date of the decision of the Director of Land Records under Section 104G. As I have held that time would begin to run either from the date of the certificate of the final publication or from the date of the disposal of the appeal under Section 104G, whichever is the later date, the present suit regarded as a suit under Section 104H cannot be held to be barred by limitation.

14. The question then arises as to whether the defendant is precluded from relying on the terms of the potta and to show that the entry of Rs. 3043/3/- under the column of rent is not to be regarded as final and conclusive.

15. As I have said already the decision of the Director of Land Records under S. 104G stated that the entry of Rs. 3043-3-0 as rent under the column headed as 'Rent' was made only for purposes of settlement of revenue, and that the contractual rent between the parties was to be determined on the terms of the potta. The effect of this decision of the Director of: Land Records is that the Director of Land Records settled the rent that was payable between the parties to be the rent which was, payable under the potta. He regarded the sum of Rs. 3043/3/- as rent which was payable in the ideal sense. In my opinion the Additional District Judge was right in his view that we have to read the Settlement Record of Rights in the light of the judgment of the Director of Land Records. If it is so read the conclusion in my opinion follows that the rent that was settled under Section 104G was the rent which appears in the potta. The case of 'Aga Mirza Ahmed v. Subodh Chandra', 55 OWN 70, on which Dr. Sen Gupta strongly relied is distinguishable from the facts of this case. In that case the suit was one strictly under Section 104H. The prayer for a declaration which was made in that case was withdrawn and the only prayers which remained were the prayers which came within the purview of Section 104H (3) Clause (g). In that case the Revenue Officer had entered a certain sum under the column 'Rent' and in the Remarks column reference was made to the potta. It was held in those Circumstances that the entry under the column 'Rent' was to be regarded as' rent payable between the parties. No appeal was taken in that case against the order of the Revenue Officer. The rent was not settled in that case under Section 104G. The tenant did not file a suit under Section 104H.

16. In the present case as I have already said the rent was settled under Section 104G by the Director of Land Records on an appeal under that section. Section 104J gives finality to the determination of the rent which is settled under Section 104G. In this case therefore we may take it that the decision of the Director of Land Records has determined the rent to be that which is payable in terms of the potta.

17. The conclusion therefore follows that the rights of the parties in the present suit should be determined on the basis of the terms of the potta and not on the solitary entry under the rent column which stales that the rent is Rs. 3043/3/-.

18. The question then arises as to what is the rent which has been determined by the potta. The potta is dated before the Bengal Tenancy Act and therefore as between the parties the terms of the potta must prevail. The (earned Additional District Judge did not consider the terms of the potta because in his opinion this was not necessary for the purposes of this case.

19. In my opinion the prayer for a declaration as to the effect of the terms of the potta and that the rent payable is Rs, 3043/3/- necessarily involves an, investigation of the question as to the effect of the potta. It is true that the plaintiff claimed rent at a certain figure, namely, Rs. 3043/3/-. In my opinion the plaintiffs are entitled to a declaration as to what is the proper rent which is payable under the terms of the potta, even though it may not be the exact sum of Rs. 3043/3/- as claimed.

20. We have therefore to construe the 'terms of the potta. The potta states inter alia:

'...............and the rate is fixed at six annas per bigha and the rent of the said 1868 bighas of land is fixed in all at Rs. 700/8/-................Further in respect of the said 1114 bighas of disputed land, if after the disposal of the suit for possession, possession is obtained, the land of the whole lot shall be measured and if there be increase in area you shall pay rent at the aforesaid rate of six annas, and if there be any decrease in area you shall get reduction at the said rate and for that you will file a separate doul kistbandi with your signature thereon...............You shall pay the rent fixed at that time without any objection, and in respect of the said lot a revenue jama of two annas per bigha has been fixed on the basis of the Government potta, if in future the jama is increased on and above that then you shall pay the increased amount of the jama over and above the rate of six annas per bigha mentioned in the present doul potta.'

21. The first part of the potta fixes the rent at Rs. 700/8/- in perpetuity subject to the covenant as regards the dispossessed 1114 bighas of land. The latter part of the potta clearly provides for an additional payment in excess of the said fixed rent provided the Government revenue is increased over two annas per bigha. in other words the lessee is to pay besides the fixed rent of. Rs. 700/8/- an increase in the revenue payable by the lessor to the extent of the increase over two annas per bigha of the settled land.

22. As I have already stated the Additional District Judge did not construe the terms of the potta. As such it is not possible for us to ascertain what the increase in the Government revenue has been over the imposition of two annas per bigha. This is a matter which requires to be determined. The plaintiffs will have a declaration that the plaintiffs are entitled to rent at the rate of. Rs. 700/8/ plus the additional increase in the revenue over the assessment at the rate of two annas per bigha.

23. In the result the plaintiffs' suit should be decreed in part. The plantiffs will have a declaration that they are entitled to recover rent at the rate of Rs. 700/8/- plus the increase in revenue as stated above, and that the said amount of Rs. 700/8/- would be payable in perpetuity. This case will be remitted to the lower appellate Court for determining the exact increase in the assessment as aforesaid and to declare that the rent is payable at a certain figure on such calculation. On the construction of the potta if the defendant is entitled to any other remission or deduction, the lower appellate Court will give effect to that.

24. There will be no order for costs in this Court and in earlier proceedings in the Courts below.

25. The costs of the hearing after remand will be in the discretion of the lower appellate Court.

Harries, C.J.

26. I agree.


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