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Nafar Chandra Pal Choudhury Vs. Bhiku Sheikh and ors. - Court Judgment

LegalCrystal Citation
Subject Tenancy
CourtKolkata
Decided On
Reported inAIR1931Cal550
AppellantNafar Chandra Pal Choudhury
RespondentBhiku Sheikh and ors.
Cases ReferredGeneral of Bengal v. Prem Lal Mullick
Excerpt:
- .....of the assistant settlement officer in this case that the landlord realized rent at the current utbandi rates for the lands under cultivation, 'no rent was realised for lands or portion thereof when left fallow.''' it appears further thatthe lands are left 'patit' (fallow) for three years after three years' cultivation, and are similarly tilled by rotation.2. on the above state of facts, the assistant settlement officer settled uniform annual rent payable in respect of the tenancies on this basis that the rent realized by the landlord in respect of a portion of the tenancy under cultivation at a particular period was to be taken to be the rent of the entire holding, negativing the landlord's claim to have rent determined in respect of the entire area of the tenancies in question,.....
Judgment:

Guha, J.

1. S.A. No. 1551 of 1928. This appeal has arisen out of a proceeding under Section 180-A, Ben. Ten. Act, started by the tenants for the fixing of uniform annual money rent in respect of utbandi lands: the proceed-];;;. so started related to a number of tenancies described with reference to khatians as specified in the finally published Record-of-Rights prepared under Chap. 10 , Ben. Ten. Act, and as the Assistant Settlement Officer before whom the application under Section 180-A was made puts it, in his judgment, the tenants wanted to have their utbandi lands converted into jamai at uniform annual money rents. The claim of the tenants was opposed by the landlord, on various grounds. It may be mentioned that the condition and incidents of the tenancies as mentioned in the settlement records are that every year rent is realised for land under cultivation excluding the patit (fallow) land. It appears from the judgment of the Assistant Settlement Officer in this case that the landlord realized rent at the current utbandi rates for the lands under cultivation, 'no rent was realised for lands or portion thereof when left fallow.''' It appears further that

the lands are left 'patit' (fallow) for three years after three years' cultivation, and are similarly tilled by rotation.

2. On the above state of facts, the Assistant Settlement Officer settled uniform annual rent payable in respect of the tenancies on this basis that the rent realized by the landlord in respect of a portion of the tenancy under cultivation at a particular period was to be taken to be the rent of the entire holding, negativing the landlord's claim to have rent determined in respect of the entire area of the tenancies in question, at the current utbandi rates. On appeal by the landlord and on cross-objections preferred by the tenants, against the decision of the Assistant Settlement Officer, the Special Judge of Nadia, in a judgment delivered more than 18 months after the case was heard by him affirmed the view taken by the Assistant Settlement Officer. As against this decision arrived at by the learned Special Judge on appeal, the landlord has appealed to this Court.

3. A preliminary objection as to the competency of the appeal was raised in view of the provisions contained in Section 180-A (15), read with Section 115-C, Ben. Ten. Act. Reliance was placed by the learned advocate for the respondents on certain decisions of this Court in which it was held that no second appeal was permissible when the decision was one settling a rent; it was further urged that Section 180-A (15) contemplated one appeal only. There is no substance in either of the contentions urged, after the decision of the Full Bench in Jnanada Sundari v. Abdur Rahman [1916] 43 Cal. 603 the position is well settled that where the decision involved a fundamental question in connexion with a tenancy, the extent of area with reference to which rent was to he assessed, as in the present case, the; decision could not by any stretch of language, be said to be a decision merely settling rent, against which there was no second appeal, provided by law: see Midnapur Zamindari Co. Ltd. v. Sridhar Mahata A.I.R. 1922 Cal. 152. In the present appeal, it may further be mentioned, the question of the rate of rent settled and which has been considered to be the fair rent per bigha or acre by the Assistant Settlement Officer, has not been and could not be questioned on the facts and in the circumstances of the case. As to the other contention that Section 180-A (15) contemplates one appeal only, the proposition does not bear serious examination Section 180-A (15) refers to and must be read with Section 115-C, which provides for a second appeal. A second appeal as presented is therefore competent, and the preliminary objections as to its maintainability must be overruled.

4. It has in the next place been pointed out by the learned advocate for the respondents that so far as two of the tenancies covered by the application under Section 180-A was concerned, the appeal to this Court has abated. These tenancies are two in number, and are represented by respondents 1 and 13 in this appeal. These two -respondents having died during the pendency of the appeal to this Court and no substitution having been made of the legal representatives of these parties in proper time, the appeal so far as the two tenancies represented by the two respondents, must be held to have abated. This position has not been controverted on behalf of the appellant, and must be given effect to.

5. Coming now to the merits of the appeal: it has been urged by the learned Advocate-General appearing for the appellants that the Courts below have misdirected themselves in the matter of determining what really constituted an utbandi tenancy. It has been argued that the Court below has not rightly appreciated the meaning of Section 180-A, Ben. Ten. Act in the matter of determining the uniform annual money rent of 'the land,' as mentioned in the section, in respect of which money rent was to be assessed, in view of the average rent ' paid or payable ' by the tenant. According to the appellant, the rent for the entire tenancy should be assessed at the current rate per bigha or acre.

6. The learned Advocate-General has referred to the case of Beni Madhub Chuckerburtty v. Bhuban Mohan Biswas [1890] 17 Cal. 393 where the characteristics of the utbandi system as it prevails in the District of Nadia, from which district the case before us comes has been mentioned, the position indicated there supports the contention advanced by him. The learned advocate for the respondents has supported the decision given by the lower Courts in the line adopted by them, and has placed before us a decision of this Court in the case of Dwarka Nath Misree v. Naboo Sarkar [1870] 14 W.R. 193 where in a case coming from the District of Jessore, the incidents of an utbandi tenancy have been referred to. The learned Special Judge has in his judgment made a passing reference to both the above cases as cases in which 'certain obiter expressions of opinion' as to what constitutes an utbandi tenancy are to be found. It appears however that the statement of objects and reasons published with the Bengal Tenancy (Utbandi) Amendment Bill, has carried weight with the learned Judge. The duty of a Court is to take the words of a statute as they are, and to interpret them in their ordinary and natural sense without reference to the proceedings of the legislature: [see Administrator-General of Bengal v. Prem Lal Mullick [1895] 22 Cal. 788, and Krishna Ayyangar v. 'Nallaperumal Pillai A.I.R. 1920 P.C. 56. Taking therefore the words of Section 180-A as they stand the relevant portions of which are quoted below; Section 180-A (1):

Notwithstanding anything contained in Section 180, when a raiyat who is or who but for the operation of Section 180 in respect of land held under the custom of utbandi would have been a settled raiyat of the village, holds or has held under the custom of utbandi, or under any form of tenancy locally known as utbandi land (hereinafter referred to as utbandi land,) either the landlord or the raiyat may apply to have a uniform annual money rent determined for the land.

Section 180-A(9): In making the determination of the sum to be paid as rent, the officer shall calculate the average of the amount that was actually paid or payable as rent for the land for the previous six years and shall ordinarily declare the same as the sum to be paid as rent

and interpreting them in their ordinary and natural sense, the conclusion appears to be irresistible that the contention advanced by the learned Advocate-General on behalf of the appellant should prevail. 'The land' to be taken into account, in determining rent under Section 180-A is the entire area of the tenancy, there does not seem to be any difficulty as to this position; the real controversy between the parties the landlord on the one hand and the tenants on the other relates to the question as to whether rent for the entire quantity of land comprised in the tenancy should or should not be assessed at the current rate per bigha or acre. The officer settling rent has to calculate the average of the amount that was actually paid' for the portion of the land actually in cultivation as also the average of the amount 'payable' for the portion which is not under cultivation for the time being and then determine the entire amount of rent payable for the entire tenancy. The amount thus determined would be the rent for the land in receipt of which the application is made for fixing uniform annual money rent. So far as the section stands there does not appear to be any foundation for the view that the amount paid for a portion of the tenancy for a particular period of time should be spread over the entire quantity of land comprising the tenancy. The view taken by the assistant settlement officer that the landlord could not fairly aspire to have all the land assessed at the current money rent, which has bean upheld by the Special Judge on appeal appears to be unsustainable, inasmuch as it is not supported by anything [contained in Section 180-A. Taking the hypothetical case considered by the Special Judge in his judgment if the tenancy be one of 10 bighas, the amount of Rs. 10 the rent paid or payable for the entire quantity of land appertaining to the tenancy and not Rs. 5 the rent paid for the area of 5 bighas in cultivation for a particular period of time, is to be taken as the average of the rent paid or payable, in determining the uniform annual money rent as contemplated by law as contained in Section 180-A, Bon. Ten. Act, subject to the same being considered as fair and equitable. In our judgment the appellant's contention should prevail and the rent for the entire tenancy the total quantity of land comprised in the tenancy should be assessed at the current rate arrived at by the assistant settlement officer in this case.

7. In the above view of the case the appeal must be allowed, the decision passed by the lower Courts must be set aside, and the case sent back to the assistant settlement officer for the purpose of dealing with the application under Section 180-A, Ben. Ten. Act, in accordance with law and for giving effect to the view expressed in this judgment so far it relates to tenancies other than the two represented by respondents 1 and 13 in the appeal to this Court. The decrees of the lower Court so far as they relate to the two tenancies represented by these two respondents 1 and 13 or their heirs and legal representatives must stand, this appeal to this Court so far as they are concerned being dismissed.

8. Parties are to bear their own costs throughout the litigation including the costs of this appeal. (Second Appeal No. 1552 of 1928 involved the decision of the same points and so was similarly decided).

M.C. Ghose, J.

9. I agree.


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