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Nani Lal Mandal Vs. Priya Nath Roy and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1929Cal545
AppellantNani Lal Mandal
RespondentPriya Nath Roy and anr.
Cases ReferredMahananda Chakravarti v. Mongala
Excerpt:
- .....describe the two pieces of land as bheri jami jalkar and it recites that these two pieces of bheri land jalkar are in the possession and enjoyment of the grantees under a previous lease. then it recites that a proposal has been made for granting a lease of the said bheri land jalkar and the terms of the agreement are these: that for the right to fishery over the first bheri rs. 500 shall be paid in advance as selami and the rent shall be fixed at rs. 3,000 per annum and that for the right to fishery over the other bheri land rs. 500 shall be paid in advance as selami and the rent shall be fixed at rs. 1,500 per annum. in this way the total annual rent of the said two pieces of bheri land jalkar is fixed at rs. 4,500. it then recites:on the aforesaid understanding we take lease of the.....
Judgment:

Rankin, C.J.

1. In this case the question is whether the claim by the plaintiff must be deemed to be subject to the special rule of limitation laid down by the Bengal Tenancy Act. That rule of limitation gives three years only for the bringing of the plaintiff's claim. Now the claim is in respect of rent of a jalkar. But the question before us depends to some extent on whether that description is adequate and sufficient and we have to turn in this case to the language of the memorandum of agreement between the parties. That agreement is an agreement in writing dated 4th January 1918, and according to the English translation be-fore us it is called a memorandum of agreement for lease for a term of three years in respect of the right to fishery over two pieces of bheri land. The first of these two pieces of bheri land is described as Gobardanga bheri surrounded on all sides by embankment. The second piece of Bheri land is described as Santiram Nashkar bheri land surrounded on all sides by embankment. The document goes on to describe the two pieces of land as bheri jami jalkar and it recites that these two pieces of bheri land jalkar are in the possession and enjoyment of the grantees under a previous lease. Then it recites that a proposal has been made for granting a lease of the said bheri land jalkar and the terms of the agreement are these: that for the right to fishery over the first bheri Rs. 500 shall be paid in advance as selami and the rent shall be fixed at Rs. 3,000 per annum and that for the right to fishery over the other bheri land Rs. 500 shall be paid in advance as selami and the rent shall be fixed at Rs. 1,500 per annum. In this way the total annual rent of the said two pieces of bheri land jalkar is fixed at Rs. 4,500. It then recites:

On the aforesaid understanding we take lease of the said two pieces of bheri land jalkar running from a certain month and having the right of possession over the said two pieces of bheri land jalkar as nij-jote execute this kabuliat.

in terms therein described. The document then recites:

We shall at our own cost make necessary and regular repairs of the sluices and the embankments surrounding the bheri during the term of the lease and we shall make other necessary expenses. We will be in possession by growing fish and catching them.

2. There are various provisions as to the payment of rent. The grantees further covenant in these terms:

We shall keep intact the boundary and shall make regular repairs of the embankment on all sides to keep them as strong and durable as they were previous to our taking the lease.

3. Now we have to consider whether the provisions of Section 193, Ben. Ten. Act, are applicable to the claim by the plaintiff for rent contracted for in this agreement. The language of the Act we have to deal with is this;

The provisions of this Act applicable to suits for the recovery of arrears of rent shall, as far as may be, apply to suits for the recovery of anything payable or deliverable in respect of any rights of pasturage, forest rights, rights over fisheries and the like.

4. Now the first thing that is argued before us by the learned advocate for the respondent is that the general principle of the matter is this that jalkar rights do not come under the Ben. Ten. Act unless they are part of agricultural holdings. That principle I shall for the purposes of this case accept. Then we have the particular provision in Section 193. The argument on that section is not that we have to read into this section a provision that the section shall apply in respect of rights of pasturage, forest rights, rights over fisheries ' being parts of agricultural holdings' but that in order to come within this section the rights over fishery must be pureincorporeal rights and that if for any purpose there is any right in the land itself whether it is purely ancillary to the purpose of fishing or not the section does not apply. It is said that if we apply the section to a case of this sort we would be violating a principle governing these matters, aud making the Bengal Tenancy Act applicable to cases where certain rights are granted in the land which are not rights granted for agricultural purposes. In my opinion, that is not the way in which thissession is to be looked at or to be considered for the purposes of the present case. The learned Additional District Judge has held that Section 193, Ben. Ten. Act does not apply to this case because the tenant was expressly given certain rights in respect of the embankments, outlets, etc. He says:

This to my mind created some sort of right in the soil and in theattached land (the embankments) although the right be confined to the raising of it or repairing of it according to the necessity of the tenants and although the same was to be restored in its original condition to thelesser on expiry of the term of the lease.

5. In other words it is stated that if there is any right given in the land then Section 193 cannot possibly be applied. In support of that contention the case of Krishnalal Choudhury v. Salim Muhammad Choudhury [1915] 19C.W.N. 514 is cited to us. It appears that there it was contended that the lease not merely conferred a right over fishery but also created an interest in the land and that accordingly it did not come within the purview of the Bengal Tenancy Act. In that particular case the Court was in no difficulty in finding an answer to the contention because on an examination of the lease itturnel out that it did not convey any interest in land over and above the mere grant of a right to fishery and on that view it was not necessary to struggle with any difficulty at all. We have also been referred to the case of Mahananda Chakravarti v. Mongala keotani [1904] 31 Cal. 937, where for reasons which do not appear to be very cogent to me it was argued that because the rent was a definite rent per annum the tenant taking the risk of being able to get enough fish from the tank, the letting was not the letting of a mere jalkar. On looking at the agreement before me it appears to me that it is a question of fishery and nothing but fishery throughout. The language of the section is not right of fishery but rights over fisheries and that expression comes after such special rights as pasturage and forest rights and is succeeded by the general phrase' and the like,' I have to refer to this document to see whether this is a case of rights over fishery or something more.

6. I need not say that I quite agree that if you look at a letting and find that it is a letting for residential purposes of certain land coupled with a letting of a right to fishery with a single rent reserved for both, the case would not come within the purview of Section 193. In the same way if in this case it was open to the tenant to use the embankment for non-agricultural purposes with no reference to fishery e.g., for industrial purposes, paying a consolidated rent for the whole thing, it would not come under Section 193. When I come to the agreement in this case it appears to me perfectly true as the learned Additional District Judge says that some sort of right in the soil may be created by the grant. But what sort of right in the soil? If it refers to the right of user of the laud and water for the purpose of fishing, or if it refers to the liability undertaken by the grantee to repair the embankment in the interest of fishing, it does not seem to me that it in any way conflicts with principle to hold that the case is covered by the expression ' rights over fisheries ' to be found in Section 193. One of the conditions upon which the considerable amount of rent was agreed to for the right of fishing over this water was that the grantee should be entitled to use the embankment for the purposes of growing fish or catching them and also to use the embankment for the purpose of keeping their obligation to repair the embankment in order that their fishing rights might not be affected. There is no suggestion in this document of the grantee having a right to use the embankment for purposes unconnected with fishing and unconnected with agriculture.

7. I, therefore, think that the special rule of limitation does apply to this case and that this the suit must bedismissed with costs in this court and in the Courts below.

C.C. Ghose, J.

8. I agree.


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