1. In the suit out of which this appeal arises the Plaintiff sued the two Defendants for the assessment of a fair and equitable rent on certain lands on the following allegations.
2. The plaintiff is the Zemindar of a 1% annas 16 gandas share in Mouza Sangrai. The Defendant No. 1 is the putnidar under him for the whole of the share (12 annas 16 gandas) that he holds in Mouza Sangrai. Within the village there were certain Chaukidari Chakran lands. These Chaukidari Chakran lands were resumed by Government and transferred to the Zemindar by two deeds, one Ex. 1, dated the 16th October 1901, which covers 25 bighas 9 cottahs odd of land, the other Ex. 2, dated 15th April 1914, which covers 6 bighas odd of land. The Defendant has refused to pay him any rent for these lands and hence the suit.
3. Defendant No. 2 contended that he had no interest in the land in dispute and this contention has been found in his favour.
4. Defendant No. 1 contended that she was only in possession of 16 bighas out of the 25 bighas covered by Ex. 1 and that the 6 bighas covered by Ex. 2 do not appertain to Mouza Sangrai but to a different Mouza. Further she has contended that the suit is barred by limitation.
5. Both the lower Courts have held that the lands in suit appertain to Mouza Sangrai; that the Defendant is not in possession of 8 bighas out of the 25 covered by Ex. 1; that she is in possession of the lands covered by Ex. 2 and she is liable to pay rent to the Zemindar for these lands and have assessed the amount of rent. It has also been found that the suit is not barred by limitation.
6. In appeal to this Court the Defendant has put forward three contentions:
(1) She is not liable to pay rent for these lands.
(2) She had been dispossessed of some of the lands and so is entitled to a suspension of the whole rent.
(3) That the suit is barred by limitation.
7. I will deal first of all with her contention that she is not liable to pay any rent for these lands.
8. Her case on this point is as follows:
These lands were included in the land of which she took settlement at a certain rent. The contract covered all the lands within the Mouza including the Chaukidari Chakran lands. Therefore her rent cannot be increased. In support of her contention she relies on the case of Narpat Singh v. Bhupendra Narain Singh A.I.R. 1922 Cal 473. This case undoubtedly supports the case of the Appellant. In that case the Plaintiff who was the putnidar sued to recover khas possession of certain resumed Chaukidari Chakran lands on the ground that they were included in the pulni taluk granted to his predecessor-in-interest. The trial Court and first Appellate Court held that be was entitled to possession on paying rent to the Zamindar for the resumed lands. This Court (Greaves and B.B. Ghose, JJ.) on appeal held, relying on the decision of the Judicial Committee in the cases of Ranjit Singh Bahadur v. Kali Dasi A.I.R. 1917 P.C. 8 and Ranjit Singh Bahadur v. Maharaj Bahadur Singh A.I.R. 1918 P.C. 85 that the putnidar's interest in such lands is derived from the putni itself and that this being so it was difficult to see on what principle the Zemindar could claim to vary the putni by enhancing the rent in respect of lands which were included in the original demise even assuming that the profits of these lands were not taken into accounts in fixing the rent. The respondent contends that the learned Judges have misread and have not appreciated the two judgments of the Privy Council on which they have based their decision and that it is contrary to a long line of decisions in this Court, the most recent decision being the case of Maharaja Bejoy Chand v. Krishna Chandra A.I.R. 1921 Cal. 466 (Chatterjea and Newbould, JJ.).
9. It is therefore necessary to examine the cases. The first case to be referred to is Ranjit Singh Bahadur v. Kali Dasi Debi A.I.R. 1917 P.C. 8, a decision of the Privy Council, because the Respondent has attacked the decision in Narpat Singh v. Bhupendra Narain Singh A.I.R. 1922 Cal 473 on the ground that the learned Judges have misconstrued it and that it does not support the view the learned Judge have taken. In that case the putnidar who was the Plaintiff sued the Zemindar for recovery of possession of certain resumed Chaukidari Chakran lands which had been transferred to the Zamindar, the Defendant, by Government.
10. The trial Court, the Subordinate Judge, decreed the Plaintiff's suit and stated that the condition on which the land should be held by the Plaintiff must form the subject of a separate suit. On appeal to the District Judge the decree of the trial Court was upheld. The Zemindar then appealed to this Court and this Court (Holmwood and D. Chatterjee, JJ.) affirmed the judgment of the lower Appellate Court except that they remanded the case to the lower Court to determine the conditions on which the lands were to be held by the putnidar.
11. The Zemindar appealed to the Privy Council who dismissed the appeal.
12. This case therefore did not decide that the putnidar was entitled to hold the lands without the payment of any additional rent. In fact as far as can be seen it was never suggested in that suit that the puinidar should not pay additional rent for these lands.
13. The order of remand to ascertain the terms on which the land should be held was not challenged.
14. The other case referred to, Ranjit Singh Bahadur v. Maharaj Bahadur Singh A.I.R. 1918 P.C. 85, does not appear to touch on this point.
15. The Respondent has referred us to a number of cases which it is now necessary to consider.
16. In the case of Hari Narain Majumdar v. Mukund Lal Mundul (1900) 4 C.W.N. 814 the putnidar sued for the recovery of possession of certain resumed Chaukidari Chakran land which had been transferred by the Government to the Zemindar.
17. In that case it was held that the putnidar was entitled to possession on paying to the Zemindar such rent for these lands as corresponded to the proportion between the gross collections and the putni rent formerly paid by him. The next case to be considered is that of Kazi Newaz Khoda v. Ramjadu Dey (1906) 34 Cal. 109 (Rampini and Mookerjee, JJ.). In this case also the putnidar sued to recover possession of certain Chaukidari Chakran lands resumed by Government and transferred to the Zemindar.
18. It was held that he was entitled to recover possession on condition that he paid the Government revenue assessed on them.
19. The next case that requires consideration is the case of Maharaja Bejoy Chand v. Krishna Chandra A.I.R. 1921 Cal. 466 (Chatterjea and Newbould, JJ.). In this case the learned Judges reviewed all the previous cases including the cases to which I have already referred. The learned Judge held that the decision of the question must ultimately depend upon the mode in which the rent was assessed at the inception of the putni. If at the time of such assessment the profits of all the lands including Chakran land were taken fully into account, the Zemindar would have clearly no right to claim any rent in addition to the putni rent. Mookerjee, J., in a later case held that if there is no indication in the contract between the parties that at the time of the inception of the grant, the putni rent was assessed on the basis of the assets of all the lands situated within the ambit of the putni inclusive of the Chaukidari Chakran lands, the putnidar should be made liable to pay some additional rent to the Zemindar on account of these lands [Mehdi Hussein v. Times Chandra Mookerji (1917) 45 Cal 635]. In view therefore of the long series of cases which support the view taken by Chatterjea and Newbould, JJ., in this case, we are not pressed by the decision in the case of Nurpat Singh v. Bhupendra Narain Singh A.I.R. 1922 Cal 473 and it therefore remains to be determined whether at the time of the inception of the lease we are now considering, there is any indication that the profit from these Chaukidari Chakran lands was included in the assets on which the rent was assessed. There is nothing as far as can be seen in the kabuliyat to show that they were. I am therefore of opinion that the Zemindar is entitled to have rent assessed upon these lands.
The next contention put forward by the Appellant is that she has been dispossessed of some of the lands and so she is entitled to a suspension of rent for the whole of the lands. There is no substance in this contention. She has not been dispossessed of any of these lands because she has admittedly never been in possession of the land that she now claims to have been dispossessed from neither is there any evidence or allegation that she asked the Zemindar to put her in possession.
20. She then contends that so far as the land covered by the grant of the 16th October 1901 is concerned the claim of the Zemindar is barred by limitation.
21. There is no substance in this contention as pointed out in the case of Ranjit Singh Bahadur v. Kali Dasi Debi A.I.R. 1917 P.C. 8, that these Chaukdari Chakran lands must be held to form part of the lands granted by the putni lease.
22. At the time of the grants the Zemindar had some interest in the land which he could transfer to the putnidar. Therefore from the inception of the putni tenancy the putnidar was the tenant of these lands and the resumption by Government and transfer to the Zemindar created no new jural relation between the parties. The fact that the putnidar has not paid rent for more than 12 years would not give him a right by adverse possession to hold the land without paying rent. He did not to the knowledge of the landlord assert any right to hold the lands without payment of rent for more than 12 years. The cross-appeal by the Respondent has not been argued and is dismissed.
23. The result is that the appeal is dismiss-ed with costs.
24. I concur in the judgment delivered by my learned brother but I think, it due to the respect to which the decision in Narpat Singh v. Bhupendra Narain Singh A.I.R. 1922 Cal 473 is entitled, that I should add a few words in defence of the view I have adopted. It is conceded by Sir Provas Mittier for the Appellant that the Judicial Committee do not in the case of Ranjit Singh Bahadur v. Kali Dasi Debi A.I.R. 1917 P.C. 8 decide the precise question raised in this case-the question of the liability or otherwise of the putnidar to pay additional rent to the Zemindar for 'the Chakran lands. But reading that decision closely it appears that their Lordships approved the decisions of this Court which had held that the putnidars were entitled under the terms of the lease to resume Chakran lands released to the Zemindar but were liable for additional rent for such lands. At p. 119 of the 44th Volume of the India Appeals Reports it is said that the counsel for the Appellant Zemindar conceded that the decisions in India, beginning with Hari Narain v. Mukund Lal (51 were against him as holding that the putnidar is entitled to possession of such lands, with the exception of the case of Kashim Sheik v. Prosanna Kumar (1906) 33 Cal. 596, which by the way is not directly in point. It is in approval of these decisions that their Lordships conclude this judgment with the following observation-'It is a satisfaction to their Lordships to find that the view above expressed is that hitherto almost universally adopted in Indian Courts.'
25. There is another way of ascertaining what their Lordships really decided in Ranjit Singh v. Kali Dasi A.I.R. 1917 P.C. 8. It was an appeal from a judgment of this Court reported under the same title [Ranjit Singh v. Kali Dasi (1909)37 Cal 5]. In that case the learned Judges of this Court held that the putnidar or the darputnidar is entitled to the Chaukidari Chakran lands and remanded the case for consideration of the conditions on which the transfer from the Zemindar to the putnidar should be made on the principles laid down in Hari Narain v. Mukund Lal (1900) 4 C.W.N. 814. The Judicial Committee by dismissing the appeal practically approved the course adopted by this Court. The decision of the Judicial Committee far from supporting the views taken in Narpat Singh's case A.I.R. 1922 Cal 473 is an authority for the proposition that the putnidar is entitled to hold the lands but on terms, viz., on payment of fair and equitable rent. The Appellant, however, argues that under Section 51 of Act VI of 1870, B.C., the putnidar is entitled to hold the lands rent-free or without paying additional rent for them. Section 51 does not go so far and its scope is, as held by the Judicial Committee, to sustain the contract between the Zemindar and the putnidar under which the putnidar is entitled to possession of the lands as part of his tenure.
26. In view of the opinion we have expressed which is in conflict with that taken in Narpat Singh's case A.I.R. 1922 Cal 473 we are asked to refer the question raised in this case to a Full Bench. I do not think such a course is necessary as we have chosen to follow a chain of earlier decisions of this Court ending with Gopendra Chandra v. Taraprasanna (1910) 37 Cal. 598 and Maharaja Bijoy Chand v. Krishna Chandra A.I.R. 1921 Cal. 466. As I think the decision of the Judicial Committee in Ranjit Singh's case A.I.R. 1917 P.C. 8 was not correctly placed before their Lordships who decided Narpat Singh's case A.I.R. 1922 Cal 473, I respectfully decline to follow it.
27. I agree that the appeal should be dismissed with costs.