Skip to content


Nabendra Kishore Roy Vs. Choudhury Mian and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported inAIR1931Cal265,131Ind.Cas.584
AppellantNabendra Kishore Roy
RespondentChoudhury Mian and ors.
Cases ReferredKrishnendra Nath Sarhar v. Kusum Karnini Debi
Excerpt:
lease - construction--'jama mokra', meaning of--permanent lease--fixity of rent--inference from conditions--provision for enhancement of rent on certain conditions--right to enhance on other grounds. - .....upon or fixed.' the word 'mokarari' has assumed a special signification by the usage. so that the word mokarari' or ''mokra' in itself does not signify perpetual fixity. but if a document indicates that it was used in place of mokarari it certainly should have that significance.4. in the present document this word is used in one of the columns of the table and may very well mean jama agreed upon. i am not therefore inclined to rely upon this word alone to hold that the tenancy is a permanent one. there are other expressions which must be looked into in order to find the true intendment of the contract between the parties. one of the conditions in the lease is to the effect that the tenant shall pay without notice additional rent at the above-mentioned rate moaning the rate given in the.....
Judgment:

Suhrawardy, J.

1. These five appeals arise out of suits for enhancement of rent under Section 30 (b), Ben. Ten, Act, 1885. In some cases there was also a claim for increase of. rent under Section 52, but it was given up. Of these five appeals it is admitted by the appellant that two namely S. A. Nos. 2337 and 2043 of 192 , must fail, because in the first case some of the respondents have died and no substitution has been made in their place, and in the second case there was no claim under Section 30 (b). So these appeals are dismissed with costs - one gold mohur in each case.

2. In the remaining three appeals the question raised is that the view taken by the lower Courts which dismissed the plaintiff's suits is incorrect in law. The question for determination depends upon the true construction of the kabuliyat dated the 4th Chaitra 1288 B. S., under which the defendants claim a permanent mokarrari right. The kabuliyat begins with a table with five columns. Column 1 gives a description of the land leased and the total area thereof. Column 2 gives the rate of rent per kani. Column 3 mentions 'jama mokra.' The fourth gives the amount of Sultana at three pies per rupee and the fifth or the last column gives the total amount of rent. In the body of the document the important passages are:

I execute kabuliyat to the effect that I shall pay the above-mentioned total amount of rent year by year according to kists specified below. I shall pay the road-cess, public works cess and dak cess etc., which are now payable and other impositions which may be levied under the law in future...I shall pay without notice additional rent at the above-mentioned rate from this year for the land which may be found in excess upon measurement....I shall on keeping intact the limits and boundaries, and abiding by future survey and jamabandi, enjoy and possess the land down to my sons, sons' son and other heirs.

3. Both the Courts below have held that this document creates a permanent moka-rari occupancy right in the tenants and therefore the plaintiff is not entitled to claim enhancement on any ground other than the ground of additional area. The trial Court has been greatly influenced by the use of the expression 'jama mokra' in Column 3 of the table given in front of the document. The learned Subordinate Judge on appeal has expressed his doubt whether the Munsif is correct in the view he took about the meaning of the word 'mokra.' But he agrees with the trial Court in the view that as the document has mentioned that rent may be increased in case of additional area being found in possession of the tenant, the intention of the parties was that it can be enhanced only on this ground and upon no other and therefore the plaintiff is not entitled to claim enhancement for rise in the price of staple food-crops. With regard to the view taken by the learned Subordinate Judge I am of opinion that it can not be maintained that because the document mentions one circumstance under which enhancement can be claimed by the landlord, ho cannot claim enhancement upon any other ground in the exercise of any other power given to him subsequently by law. In the case of Basanta Kumar Kapali v. Satyemdra Mohan Tagore : AIR1925Cal1209 it was held that it cannot be asserted that mention of one contingency in one document does not exclude all other contingencies giving rise to the claim of the landlord for enhancement of rent when the right has been conferred on him by law after the contract. I have therefore to construe the entire document in order to find out the real intention of the parties. It has been strenuously argued on behalf of the respondents that the expression ,'jama mokra' gives clear indication of the rent being fixed in perpetuity and reliance has been placed in support of this view on Raja Rishikesh Law v. Satish Chandra Pal A.I.R. 1922 Cal. 123 whore, in a document written by an Uriya scribe, the learned Judges have hold that 'mokra' is a corruption of mokarari' and means fixed in perpetuity. This view as to the meaning of the term mokra has been examined in Letters Patent Appeal No. 46 of 1926 in appeal from Appellate Decree No. 2165 of 1924 {decided on 4th May 1927) where it was observed that the word 'mokra' need not necessarily bear everywhere the meaning given to it in the case of Raja Rihikeah Law v. Satinh Chandra Pal A.I.R. 1922 Cal. 123. The word 'mokra' admittedly is a corruption of the Arabic word ' mokarrar' which is derived from the word 'karar' meaning agreement. The inflexions of karar,' 'mokarar' or mukarrara' which has taken the Indian form of' mokarrari' 'means agreed upon or fixed.' The word 'mokarari' has assumed a special signification by the usage. So that the word mokarari' or ''mokra' in itself does not signify perpetual fixity. But if a document indicates that it was used in place of mokarari it certainly should have that significance.

4. In the present document this word is used in one of the columns of the table and may very well mean jama agreed upon. I am not therefore inclined to rely upon this word alone to hold that the tenancy is a permanent one. There are other expressions which must be looked into in order to find the true intendment of the contract between the parties. One of the conditions in the lease is to the effect that the tenant shall pay without notice additional rent at the above-mentioned rate moaning the rate given in the previous portion of the document for land winch may be found to be in excess by measurement. It is argued and in my judgment rightly, that this clause lends support to the view that the intention of the parties was to fix the rent in perpetuity. A contract very much similar to the present was considered in Chandi Charan Lata v. Sm. Azizennessa (S.A. No. 1887 and other appeals of 1920 decided on 11th January 1922, the judgment of which may be found in A. I, B. 1922 Gal. p. 18). There the learned Judges observed:

The word mokarari has not been used in the document and there is no express provision in the document that rent shall be enhanced. But there is some indication in the document to show that the parties did not intend that there should be an enhancement of rent. The kabuliyat provides that if there is an increase in the land on measurement the tenant would have to pay rent separately for the excess area at the rate stipulated in the document. That shows that the rent was a fixed one because it could not have been intended that the tenant would pay for the excess area at the rate stipulated in the kabuliyat and at the same time would have to pay at an enhanced rate for-the original area mentioned in the kabuliyat.

5. This observation applies to this case with equal force. The lease is a permanent one, and though there is no presumption that a permanent lease must be at the same time mokarari, if sufficient intention is found in the lease it does not require any straining of language to hold that though it does not mention the word 'mokarari' and exclude the landlord's right to enhance the rent, the intention of the parties was to create a permanent mokarari lease. In this view I agree in holding, though not upon the ground mentioned by the learned Judge, that the lease created a permanent mokarrari holding and that the landlord is not entitled to enhance the rent under Section 30 (b), Ben. Ten. Act. Reference has been made in argument to a number of cases by the learned advocate for the appellant. But I do not think it necessary to refer to them inasmuch as every one of them is distinguishable from the present case on the contracts involved in them. But special mention should be made of the decision of the Judicial Committee in Krishnendra Nath Sarhar v. Kusum Karnini Debi . There the contract stated that the tenant would be ' entitled to the profit and liable for the loss' an expression upon which the trial Court relied for holding that the tenure was mokarrari. This Court on appeal hold that the view of the Subordinate Judge was not right inasmuch as this expression was followed by another expression in which the tenant was held not to be competent to pray for reduction of rent but he should abide by the survey and settlement of rent to be made by the landlord if necessary. This condition was construed as meaning that the landlord excluded the right of the tenant to claim reduction of rent but maintains 1 his own right to claim enhancement; and their Lordships of the Judicial Committee agreed with the view of this Court The present contract is not similarly worded and especially the contract before the Judicial Committee did not contain words that additional land found in possession of the tenant would be assessed at the rate given in the document.

6. Those appeals accordingly fail and are dismissed with costs.

7. Leave is given to the appellant to prefer Letters Patent Appeals.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //