Skip to content


Abdul Karim Chowdhury Vs. Prosanna Kumar Nath - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1925Cal1116,85Ind.Cas.770
AppellantAbdul Karim Chowdhury
RespondentProsanna Kumar Nath
Cases ReferredRadha Charan Ray Chowdhury v. Golak Chandra Ghose
Excerpt:
- .....the learned vakil for the respondent that in this document there is a provision for payment of the rent by instalments and these instalments amount to the total sum claimed by the plaintiff-appellant as payable.4. there is a large amount of case-law on the question as to whether the extra amount, of which payment is provided in the lease, should be treated as part of the rent and, therefore, recoverable or treated as irrecoverable abwabs. a large number of these cases were discussed in the case of bejoy singh dadhuria v. krishna behari biswas [1917] 45 cal. 259. it was a letters patent appeal from my own decision, and in that particular case it was held that the sum which was in dispute was to be regarded as an irrecoverable abwab. but there is a passage in the head-note to that case.....
Judgment:

Newbould, J.

1. The only point press-ed in this; appeal as before the lower appellate Court relates to the amounts of yearly rent, which the plaintiff-appellant is entitled to realize. The plaintiff claimed rent all the rate of Rs. 2-10-6 in addition to cesses and obtained a decree based on this rate in the first Court. On appeal the annual amount of rent payable was held to be Rs. 2-4-6, the learned Subordinate Judge having disallowed two items: for vet, cocoanut, 1 anna 6 pies, and for begar 4 annas 6 pies, as irreoverable abwabs.

2. Before dealing with this question it is necessary to refer to a preliminary point, which arose in connexion with the hearing of the appeal. The decision of this appeal depends on the construction of the lease, Ex. 1, by which, the tenancy was created. Under the rules of this Court contained in Note 1 of Rule 50 of Ch. IX of the Appellate Side Rules of this Court, it was the duty of the vakil for the appellant before the hearing of the appeal to serve on the vakil for the respondent a typed copy of the translation of this Exhibit and also to provide two such typed copies for the use of the Division Court, and this was not done; and as provided in that rule, I refuse to allow the learned vakil for the appellant to refer to this document at the hearing. He contended that this rule did not apply in the case of the present appeal which is an appeal from an appellate decree not exceeding Rs. 50 in value. In my opinion this Note and also Rule 50 apply to all appeals from appellate decrees, Rule 52 does not make any alteration as to the contents of the paper-book to which Rule 50 relates. It only modifies the previous Rule 51 which requires printed copies of the paper-book to be prepared by the Registrar at the cost of the appellant. In the case of appeals referred to in Rule 52 no printed paper-book is prepared, but instead of that typed copies of the paper-book are prepared without any charge being levied from the parties, but the contents of the paper-book remain the same in both classes of appeals.

3. As the decision of this appeal depends entirely on the construction of the lease the appellant has been put to some difficulty. It is for him to show that the decision of the appellate Court is wrong and it is difficult for him to do so without referring to the document, which the Courts have to interpret. However, from the judgment of the lower appellate Court there is sufficient description of the contents of the document to enable the argument to be adduced that the construction by that Court is wrong and the argument has been considerably strengthened by the admission, that was very fairly made by the learned vakil for the respondent that in this document there is a provision for payment of the rent by instalments and these instalments amount to the total sum claimed by the plaintiff-appellant as payable.

4. There is a large amount of case-law on the question as to whether the extra amount, of which payment is provided in the lease, should be treated as part of the rent and, therefore, recoverable or treated as irrecoverable abwabs. A large number of these cases were discussed in the case of Bejoy Singh Dadhuria v. Krishna Behari Biswas [1917] 45 Cal. 259. It was a Letters Patent appeal from my own decision, and in that particular case it was held that the sum which was in dispute was to be regarded as an irrecoverable abwab. But there is a passage in the head-note to that case which to some extent supports the contention raised on behalf of the appellant. It is there held that in determining whether an item did or did not form part of the rent the fact that it has been stipulated to be paid separately from the rent, and also the fact chat it is not included in the instalments of the rent have been considered as having material bearing on the question. Hare, as already stated, it is in the appellants' favour that the items in dispute in the present case have been included in the instalments of the rent. I do not propose to refer to all the cases, which have been cited in argument. A very large number of them have been discussed in the case to which I have just referred. I will refer to one unreported case [Nagendra Lal v. Hamdoo Mia [1916] 37 I.C. 965] decided on the 22nd November 1916, which was specially relied on by the learned vakil for the appellant. That was a case from the same district, Chittagong, and it was there held that the item in dispute were really part of the consolidated rent and, therefore, recoverable. There too one of the ground.:; for deciding in the landlord's favour was that this consolidated amount including the disputed item, was shown as recoverable in three instalments. It appears to me that) this case is distinguishable on the ground that it is there stated that) the rent sought to be recovered was mentioned in the body of the document. Here, it would appear from the judgment) of the lower appellate Comb that in the pattah the total rent is stated to be Rs. 2-4-0 only and that the disputed Items are shown in a tabulated form common in Chittagong and in that) form is also shown a sum as the total amount 'payable for the land. Though this total is admittedly shown as payable in instalments, I must hold on the materials before me, that the learned Subordinate Judge has given good reason for holding never-theless that these two items of 1 anna 6 pies, the value of cocoanut, and 4 annas 6 pies, the value of begar, were not recoverable as part of the rent. The important point to my mind, is that, though the instalments include these amounts nevertheless the body of the lease provides that the cocoanuts are to be supplied and the labour to be performed specifically an a single occasion only. As, the learned Subordinate Judge correctly states: ' If the vet and begar merely consisted of definite sum of money then they would have been looked upon as part of the rent) being a definite sum like it. ' But the kabuliyat shows that they were intended to be performed specifically with a money equivalent in case of breach. Had there been no such stipulation for specific performance the plaintiff's case would in my opinion have been irresistible. But this clause in the lease makes it distinguishable from other cases in which similar amounts have been held to form part of the consolidated rent.

5. It was also contended that the plaintiff has in his favour an entry in the record-of-rights and that the presumption arising from that entry has been unrebutted. The presumption has, however, been rebutted by the evidence of the lease itself, Ex. 1. It is further contended that the previous decree in a rent suit, in which these amounts were recorded by the plaintiff operates as res judicata. The learned Subordinate Judge is undoubtedly right in holding that the decree, without the judgment, cannot amount to more than a strong piece of evidence regarding the amount of rent realized from year to year. As was pointed out in one of the cases relied on behalf of the appellant in the main case of Radha Charan Ray Chowdhury v. Golak Chandra Ghose [1904] 31 Cal. 834 the payment of the disputed amount for a large number of years without objection does not prevent the question as to the legality of the payment being raised in this suit.

6. For the above reasons I hold that the decision of the lower appellate Court was right, and I accordingly dismiss this appeal with costs.


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