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Nagi Mamud Pramanik and ors. Vs. Ahammad Idris Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1931Cal303
AppellantNagi Mamud Pramanik and ors.
RespondentAhammad Idris Khan and ors.
Cases ReferredSafaruddi v. A. K. Fazal
Excerpt:
- .....can be no doubt on the construction of these kabuliyats that the original rent plus excess was the rent of the holdings after the execution of these kabuliyats. we may take one of these kabuliyats as a type for considering whether this view is correct or not. the material part of one of these kabuliyats runs as follows:now, you having demanded a separate kabuliyat for your share of 5 annas 4 pies of the said darjote we of our own accord, for 6 pakhis of land, being the 5 annas 4 pies share of the said darjoto, the rent for your share being settled at rs. 13-8-0 but we being nachar and having requested you, rs. 3-15-15 being kept hajat for the present, do execute this kabnliyat and promise that we shall pay the rent of rs. 9-8-5 gds after deduction of the hajat to you or your authorized.....
Judgment:

Mitter, J.

1. These are 20 appeals and arise out of as many applications brought by the respondent landlords under Section 105, Ben. Ten. Act, for settlement of fair and equitable rent. It appears that in the Record-of-Rights the defendants-appellants in each of these proceedings. were recorded as occupancy raiyats. The landlords consequently instituted these proceedings under Section105 for settlement of fair and equitable rent in respect of each of these tenancies and asked for enhancement of rent on the ground of rise of price of staple food crops under Section 30 (b), Ben. Ten. Act. It appears that in each of these tenancies-separate kabuliyats had been executed in favour of the landlords by the tenants. But the kabuliyats are in respect of lands which form the undivided share of the entire lands which are held under three-sets of cosharers of which the landlords who instituted these proceedings are one and have got only a third share in each of these holdings; the remaining landlords of 2/3rds share are not parties to these. Section 105 proceedings, nor have they filed separate applications in respect thereof. The tenant defendants raised several issues in these proceedings of which it is necessary to notice only two. Issue 4 was to the effect whether there should be enhancement on the ground of rise of prices of staple food crops and what that enhancement should be. The tenant defendants evidently raised the contention that the tenancies were holdings at fixed rent and consequently they had been wrongly recorded as occupancy raiyats. This contention gave rise to issue 6 which was as follows: ' Are the tenancies in question held at fixed rent'?

2. The Assistant Settlement Officer who dealt with these proceedings in the first instance came to the conclusion that the tenants were not tenants, who held at fixed rent and that the rents of the tenancies were liable to enhancement. He also held that an enhancement could be allowed having regard to the principles laid down in Section 30 (b), Ben. Ten. Act. He allowed enhancement on the ground of rise of prices of staple food crops at the rate of 4 annas in the rupee and he considered the enhancement as fair and equitable. Against this decision of the Assistant Settlement Officer in these proceedings appeals were taken to the Court of the Subordinate Judge of Bogra who evidently must have been invested with powers of a Special Judge and the learned Special Judge affirmed the decisions of the Settlement Officer in these .20 proceedings and dismissed the appeals of the defendants.

3. Against the decisions in these 20 proceedings the present appeals have been brought by the defendants. Two points have been taken before us by the learned advocate who appears on their behalf. It is said, in the first place, that it having been found that the tenants in each of these cases have been paying uniform rent for more than 20 years prior to the institution of these proceedings and the origin of the tenancies being unknown they were entitled to the benefit of the presumption under Section 50, Ben. Ten. Act, and it is further argued that the lower appellate Court was clearly in error in holding that the presumption had been rebutted iu each of these cases by the kabuliyats which had been filed in the several cases. The second contention raised before us is that the claim for enhancement of rent on the ground of rise in the prices of staple food crops should have been disallowed as the lands held by the tenants in each of these cases do not constitute a holding within the meaning of the Bengal Tenancy Act and therefore Section 30, Clause (b) does not apply to these cases and consequently the claim for enhancement should not have been entertained and the settlement of fair and equitable rent should not have been made on the basis as if Section 30, Clause (b) applies to these cases.

4. With regard to the first contention it appears to us that the rents which have been paid for a period of more than 20 years were the original rentals since the inception of the tenancies. But it appears that some time after the inception of the tenancy, about the year 1301 B. S., kabuliyat was executed by the tenants in each of these cases by which they agreed to pay rent in excess of the original rental, but this excess which was treated as part of their rent was kept in bajat or suspense and the landlords reserved to themselves the right of realization of the same with the original rent whenever they so desired. In these circumstances we think that the Courts below were right in coming to the conclusion that the presumption under Section 50, Clause (2), Ben. Ten. Act, has been rebutted by the variations in the rents evidenced by these kabuliyats. It is argued for the appellants, however, that as the rent which was paid or realized was the original rental and the excess was kept hajat it cannot be said that these kabuliyats rebut the presumption under Section 50. But the question really is as to whether the tenants had been holding at a uniform rent since the time of the Permanent Settlement. The presumption under Section 50 is rebutted by its being shown that there has been a change since the date of the Permanent Settlement of the original rental and that something was added to the rent. The mere fact that this sum was not realized does not make any difference for the rental was changed by these kabuliyats and it was optional with the landlords to realize the same at any time. There can be no doubt on the construction of these kabuliyats that the original rent plus excess was the rent of the holdings after the execution of these kabuliyats. We may take one of these kabuliyats as a type for considering whether this view is correct or not. The material part of one of these kabuliyats runs as follows:

Now, you having demanded a separate kabuliyat for your share of 5 annas 4 pies of the said darjote we of our own accord, for 6 pakhis of land, being the 5 annas 4 pies share of the said darjoto, the rent for your share being settled at Rs. 13-8-0 but we being nachar and having requested you, Rs. 3-15-15 being kept hajat for the present, do execute this kabnliyat and promise that we shall pay the rent of Rs. 9-8-5 gds after deduction of the hajat to you or your authorized agent every part every year according to kists named below and take receipts.

5. It is quite clear from this recital in the kabuliyat that the rent which was fixed was the original rent plus the excess which was kept hajat. That being so we think the Courts below have reached the correct conclusion in holding that the presumption under Section 50 has boon rebutted by these kabuliyats. The position therefore of the defendant is that of occupancy raiyats as they have boon correctly recorded in the Record-of-Rights, and this question whether the tenancies in question have been held at fixed rent or not has been correctly answered by the Courts below.

6. We now proceed to determine the other point which has been raised on behalf of the appellants. There can be no question that Section 30, Clause (b), in its terms does not apply to any land which cannot be regarded as a holding within the meaning of the Bengal Tenancy Act, as it stood before the amendment by Act 4 of 1928. Under Section 105, Clause 4, Ben. Ten. Act, the Revenue Officer in determining the fair and equitable rent is required to have regard to the rules laid down in the Act for the guidance of the civil Courts in increasing or reducing the rent as the case may be. The lands which are held by these tenants are the entire lands owned by all the cosharer landlords and consequently although there might be separate tenancy under each of the different sets of cosharer landlords the tenancy cannot be regarded as a tenancy in respect of a holding or in respect of a parcel of land within the meaning or definition of the holding in the Act. That being so it is difficult to say that the Settlement Officer would be justified in applying the provisions of Section 30, Clause (b) of the Act, to a case where the lands hold by a tenant do not constitute a holding within the meaning of the Act. Section 30 makes it absolutely clear that enhancement on the ground of rise in the prices of staple food crops can only be asked for in respect of a holding, for the material words of Section 30 are:

The landlord of a 'holding' held at a money rent .... institute a suit to enhance the rent on one or more of the following grounds.

7. It is now firmly established that the landlord of an undivided parcel of land cannot maintain a suit under Section 30,. Clause (b), Ben. Ten. Act. The question is if there is anything in Section 105, which authorizes the Settlement Officer to do something which the civil Courts are net permitted to do. in view of the authorities of this Court. The Courts below have relied on a decision of this Court in the case of Safaruddi v. A. K. Fazal [1915] 30 I.C. 414. There it was said by Chatterji, J., that as in Section 105 the word 'land' is used an application for enhancement of rent could be made by a cosharer landlord, under Section 105 of the Act. The case however does not show that the learned Judge laid it down that such an application could be entertained even if the enhancement was asked for under Section 30(b), Ben. Ten. Act. Clause 4, Section 105, makes it incumbent on the revenue officers to observe the rules laid down in the Act for the guidance of the civil Courts and Section 30, Clause (b) furnishes one of such rules. Since the Settlement Officer finds in the cases with which we are now dealing that the lands held by the tenants do not constitute holdings he should not have applied the provisions of Section 30 (b) to the present cases. The learned Advocate for the respondents has drawn our attention to a decision of Suhrawardy, J., and Garlick, J., in the case of Surendra Chandra Roy v. Kedareswar : AIR1929Cal156 , where the learned Judges seem to have laid down that in proceedings under Section 105 an application under Section 30, Ben. Ten. Act, can be made by a landlord who is not the landlord of the 'holding' but of undivided parcels of land. An examination of the case however will show that Suhrawardy, J., came to this conclusion with considerable reluctance and he pointed out the absurd position in which one lands oneself if one were to accept the view that Section 30 would apply to such a case. But the learned Judge thought that he was bound by the authorities to take that view. The cases however on which the learned Judge relies in coming to his decision are Safaruddi v. A. K. Fazal Huq, Panchanon v. Rajkumar [1892] 19 Cal. 610 and Govinda v. Hamidulla [1903] 7 C.W.N. 670. An examination of each of these cases which we have examined with care will show that none of these cases refer to enhancement under Section 30, Clause (b), Ben. Ten. Act. They were cases where the question arose as to whether Section 188 was a bar to the institution of a suit by a cosharer landlord in whose favour a kabuliyat has been executed by the tenant.

8. With regard to the case in Safaruddi v. A. K. Fazal as I have already indicated the question did not arise in regard to any enhancement under Section 30. It seems therefore there are no authorities of this Court which would compel us to hold that the view taken by Suhrawardy, J., in the case referred to above is the correct view to take. The precise question with which we are now dealing was not considered in any of the cases to which Suhrawardy, J., referred. It is impossible to escape from the position that it is incumbent on the Settlement Officer in assessing fair and equitable rent to have regard to the rules laid down in the Act. That being so it was not open to the Assistant Settlement Officer to apply the provisions of Section 30 (b), to the facts of a case to which it cannot in terms apply. We think therefore that the Courts below have not taken the correct view in finding that the landlords were entitled to get additional rent under the provisions of Section 30 (b), Ben. Ten. Act.

9. The result therefore is that these appeals must be allowed. The decision of the Settlement Officer in so far as it allows the enhancement on the ground of rise of prices of staple food crops must be set aside. The effect of the decision in these cases would be that the status of the defendants in each of these cases is declared to be that of tenants who are merely occupancy raiyats and who do not hold at fixed rent, but the landlords' claim for enhancement of rent must be dismissed on the ground that Section 30 (b), Ben. Ten. Act, does not apply to these cases. The appellants are entitled to half of their coats, throughout.

Graham, J.

10. I agree.


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