Skip to content


BipIn Behary Mitter and ors. Vs. Sarat Chandra Sirkar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.760
AppellantBipIn Behary Mitter and ors.
RespondentSarat Chandra Sirkar and ors.
Cases ReferredRadha Prosad Singh v. Bal Kowar Koeri
Excerpt:
abwab - zemindary salami--mokarari lease--rent--additional sum--whether recoverable. - .....sum as rent and a certain additional sum as zemindary salami. that additional sum, which forms the item described in the plaints as abwab, was kept entirely separate from the rent in the leases and was recited as a separate charge. the lower courts holding that this sum was not included in the rent and, relying on the decision of this court in the case of apurna charan ghose v. kusam ali 10 c.w.n. 527 : 4 c.l.j. 527, held that this item constituted an abwab which, under the provisions of section 3 of regulation v of 1812, was not recoverable by the landlords from the tenants. it has been contended on behalf of the appellants that from the terms of the lease, it is clear that the item agreed to be paid on account of zemindary salami was a portion of the consideration for the leases and,.....
Judgment:

1. The only question, which has been raised in these appeals, is whether the lower appellate Court erred in law in holding that certain sums which were claimed by the plaintiffs, the present appellants, as abwabs were not recoverable under the law from the defendants respondents. The learned Judge confirmed the judgment of the Court of first instance that these additional items constituted abwabs and that they were not recoverable from the tenants. The qabuliats (agreements), on which the plaintiffs seek to recover the amounts included in their claims, were executed long before the Bengal Tenancy Act of 1885 came into force and, therefore, the provisions of that Act have no application to the present cases. The leases were mokarari leases and, in those leases, there was an agreement to pay a certain sum as rent and a certain additional sum as zemindary salami. That additional sum, which forms the item described in the plaints as abwab, was kept entirely separate from the rent in the leases and was recited as a separate charge. The lower Courts holding that this sum was not included in the rent and, relying on the decision of this Court in the case of Apurna Charan Ghose v. Kusam Ali 10 C.W.N. 527 : 4 C.L.J. 527, held that this item constituted an abwab which, under the provisions of Section 3 of Regulation V of 1812, was not recoverable by the landlords from the tenants. It has been contended on behalf of the appellants that from the terms of the lease, it is clear that the item agreed to be paid on account of zemindary salami was a portion of the consideration for the leases and, therefore, that it is recoverable from the tenants ; and, in support of this contention, reliance has been placed on the case of Radha Charan Roy Chowdhry v. Golak Chandra Ghose 31 C. 834. The question, however, which has to be considered in these cases, as it was also considered in the case on which reliance was placed on behalf of the present appellants, is whether the disputed item in the present cases is an abwab or not. In the case of Radha Charan Roy Chowdhury v. Golak Chandra Ghose 31 C. 834, the learned Judges were of opinion that the extra amount described as mokarani akrajat shamil khagna was a portion of the rent. In the present cases the item is described as abwab in the plaints and in the leases, it is described as zemindary salami expenses. What those expenses are it is not distinctly stated but, so far as we can judge, they are arbitrary and extra charges imposed on the tenants on account of work done in the zemindary sherista and for other purposes, which charges have always been regarded by this Court as illegal cesses or abwabs. We are of opinion that the present cases fell within the principles laid down by the Full Bench in the case of Radha Prosad Singh v. Bal Kowar Koeri 17 C. 726. The amounts claimed as abwabs cannot, in our opinion, be regarded as forming parts of the rents fixed on the holding nor can they be regarded as consolidated with the rentals. In the documents they have been recited as charges separate from the rentals and in the suits themselves they are claimed as separate charges. In our opinion, the view taken by the lower Courts is in accordance with the principles laid down by this Court in the Full Bench case, to which we have referred, and in other cases, and we are of opinion that no grounds exist for our interference with the judgment of the lower appellate Court. The result, therefore, is that the appeals are dismissed with costs.


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