IN M. A. NOS. 537, 557 AND 558 OF 1907.
1. These are appeals by the tenants in suits instituted by the Noabad Talukdar to recover arrears of rent in respect of the khila lands which became hasila during the years 1264 to 1267 of the Maghi era which is prevalent in the District of Chittagong where the lands are situated. The word khila signifies 'waste'; hasila on the other hand means cultivated'. It is admitted that the talukdar has realised his rent dues for the years in suit, in accordance with the rentals fixed as fair by the Settlement Officer. The question for determination is whether the fair rate of rent is to be applied to the khila lauds as soon as they became hasila (as contended for by the talukdar) or whether the assessment should be made after fifteen years (the period mentioned in the written statements of the tenants).
2. The first Court dismissed the suits. On appeal, the District Judge of Chittagong has remanded the cases under Section 562 of the old Code of Civil Procedure, for a finding upon the point whether the lands were brought under cultivation before the year 1267 M.E. The District Judge has found that the talukdar is entitled to receive additional rent on the khila areas in the respective suits for the years 1264-1267 M. E. if they are fit for cultivation.'
3. It is urged for the tenants (defendants-appellants) that the Settlement Officer, in the year 1892 fixed a consolidated rental on each of the holdings, his decision having the force of a decree in virtue of Section 107 of the Bengal Tenancy Act as it stood in the year 1892 before the Amending Act III (B.C ) of 1898, remodelled Chapter X of the Rent Law. It has also been argued, though not very strenuously, that the plaintiff, talukdar, having realised the admitted rents for the years in suit cannot now recover additional rent for the same period.
4. The second contention must fail because there is no finding nor do the rent receipts show, that the talukdar received his dues from tenants, and that the latter paid him on the understanding that no further demands would be made. The principle of estoppel clearly does not apply to the facts of these cases and we do not find that the talukdar made any admissions on the subject of the khila areas being left unassessed.
5. The first contention, also, cannot succeed in the circumstances of this litigation. One of the peculiarities of the Chitta-gong Land Revenue System is that tenants have khila lands included in their holdings for the purpose of reclamation though rent is assessed on the actual hasila area only. Hence the stipulation khila hasila haila bondobastimate nirrekh', that is, on the waste lands becoming cultivated, they will be assessed at the settlement rate of rent. The khatian (of the year 1895) contains the entry to the effect already mentioned; namely, that khila was to be assessed with rent on becoming hasila. This latter entry, or stipulation, is based on the admission recorded in the fair rent proceedings of the year 1892, that the tenants were 'liable to pay at the rate of 8 annas a kani on the hasila area.' In our opinion the increase in the rental would accrue automatically on any portion of the waste becoming cultivated. To such a process neither Section 113, nor any other section of the Bengal Tenancy Act, can operate as a legal bar. Whatever degree of finality may attach to the decision of the Settlement Officer, it is not a question, here, of res judicata, but of construction. The decision proceeds on the basis of the admitted and settled incident of the tenancy, and additional rent is imposed on account of the increase in the hasila area. The taluki rtibokari drawn up two years after the fixation of fair rents on the tenants, is not relevant for the present purpose. It only shows that the khila linds left in possession of the tilukdar were dealt with on a different system, the term? imposed on the talukdar. being peculiar to him.
6. We are fortified in our conclusions by the observations of Pigot and Banerji, JJ., in Ram Chunder Chuckrabutty v. Giridhur Dutt 19 C. 755 : 9 Ind. Dec. (N.S.) 945, where the facts were similar to those of the present cases.
7. There is, however, a verbal inaccuracy in the judgment of the District Judge. The khila portions of the tenants' holdings cannot be assessed with additional rent merely ' if they are fit for culivation.' The proper direction, and we now make it, is that any portions of the khila areas actually-cultivated during the years in suit, or any shorter period within that limit, shall be assessed with additional rent at the original fair rent rates accepted by the Settlement Officer. With this variation these appeals are dismissed: with posts.
In Appeal No. 2024.
8. We accept the entry in the plaintiff's khatian as correct, inasmuch as it accords with the decision of the Settlement. Officer which proceeds on the basis of; the incident subsequently recorded, in such entry. For reasons similar in all respects to those given in our judgment just delivered in the connected Appeals Nos. 537, 557, 558 of 1907, we set aside the decision of the Subordinate Judge confirming the dismissal of the plaintiff talukdar's suit, and we direct that the case be remanded to the Court of first instance to be dealt with in accordance with the observations we have made in regard to those appeals.
9. The appeal is allowed with costs.
In Appeal No. 1431.
10. In this case the amount of rent Rs. 49 was assessed on a holding which consisted entirely of khila lands. The plaintiff's khatian contains an entry purporting to be an admission by the raiyat in occupation of the land at' the time of the settlement that when the lands of the holdings (which were then Nalbat) are fully cultivated, there will be remission of rent for four years, after which the rent will be at the rate of Rs. 22 per drone'. The plaintiff has purchased the rights of this raiyat in the holding and has brought the present suit; for rent against the under-raiyat. The latter cannot be placed in a more favourable position than their lessor, and, if the lands have been fully cultivated for more than four years, the higher rate of Rs. 22 per drone must be applied.
11. This appeal also is allowed with costs. The case is remanded to the Court of first instance to be dealt with agreeably to the directions we have given.