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Basanta Kumar Kapali and ors. Vs. Satindra Mohun Tagore and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in88Ind.Cas.377
AppellantBasanta Kumar Kapali and ors.
RespondentSatindra Mohun Tagore and ors.
Excerpt:
construction of document - one contingency mentioned--other contingencies, whether excluded--landlord and tenant--enhancement of rent--bengal tenancy act (vii of 1885), section 30--second appeal--particular words, construction of--question of fact. - .....same meaning is to be given to this word in every part of bengal. the word 'zimma' is an arabic word meaning charge or custody and zimmadars were created by zemindars who took upon themselves the charge of paying the government revenue payable by the zemindar. gradually the meaning of this word extended and'' included various sorts of tenancies. whatever the meaning of this expression may be in other places the learned special judge of tipperah is of opinion that in that district no definite meaning can be assigned to this word. it is also significant that these tenancies which are described as 'jimbadari' in the kabuliyats were recorded by the settlement officer of the district in the record of rights as raiyati holdings. it is expected that the settlement officer was conversant with.....
Judgment:

Suhrawardy, J.

1. These appeals are by the tenants against the decrees of the Special Judge of Tipperah from which the appeals we have just disposed of, namely, S.A. Nos. 2277 to 2280 of 1921, arose. It is argued on behalf of the tenants that certain tenancies which were recorded in the Record of Rights as raiyati holdings and which the learned Special Judge has found to be so, ought to have been recorded as tenures. The kabuliyats in these cases are described' as sarasari jimbadari kabuliyats. The whole argument of the learned Advocate for the appellant centres round the meaning of the word 'zimmadari.' We have been referred to the definition of the word' zimmadar' in Wilson's Glossary where it is stated that in Eastern Bengal it means a tenure or an under-tenure; and we are asked to hold that the tenancies created under these kabuliyats were all tenures. There is no doubt that in one part of Eastern Bengal, namely, in the District of Backerganj or in portions of that district the expression 'jimbadari' ordinarily means a tenure; but it does not follow therefrom that the same meaning is to be given to this word in every part of Bengal. The word 'zimma' is an Arabic word meaning charge or custody and zimmadars were created by zemindars who took upon themselves the charge of paying the Government revenue payable by the zemindar. Gradually the meaning of this word extended and'' included various sorts of tenancies. Whatever the meaning of this expression may be in other places the learned Special Judge of Tipperah is of opinion that in that district no definite meaning can be assigned to this word. It is also significant that these tenancies which are described as 'jimbadari' in the kabuliyats were recorded by the Settlement Officer of the District in the Record of Rights as raiyati holdings. It is expected that the Settlement Officer was conversant with the meaning attached to the word in the locality. In these circumstances the learned Judge seems to be perfectly justified in holding that, so far as the District of Tipperah is concerned, the word 'jimbadari' has not been assigned any definite meaning and is of doubtful import. I am of opinion that the question as to whether a particular word bears a particular meaning in a particular place is a question more of fact than of law. In the view that no help as to the character of the tenancy is to be derived from the word 'jimbadar' the learned Judge proceeded to examine the documents themselves and the conduct of the parties since the creation of the tenancies to ascertain the manner in which the lands were used by the tenants. Considering all these circumstances he has arrived at the con-, elusion that the tenancies were raiyati tenancies. We think that it is a conclusion of fact and it ought not to be disturbed in second appeal. The documents themselves give sufficient indication as to the nature of these tenaacies. Therein it is mentioned that the tenants will not be entitled to cut trees, excavate tanks or to build permanent structures on the lands. These restrictions are inconsistent with the permanent nature of a tenure. Then again, conceding that the word 'jimbadari' meant a tenure, the Judge as a judge of fact was within his rights in not attaching undue importance to a single expression but enquiring into the real nature of the interest on a consideration of the entire record. The result of this enquiry must be taken to be a finding on a question of fact.

2. The next point taken on behalf of the appellants is that on a consideration of the kabuliyat it ought to have been held that the jama of these tenancies were fixed and not liable to enhancement. This argument is divided into two heads. In the first place it is argued that the kabuliyat shows that the rent is not liable to be enhanced. This contention is based upon the fact that the document nowhere states that the rent should be enhanced except upon a future survey. There is, however, no stipulation in the document that the rent cannot be enhanced in any other way. In this connection it may be profitable to enquire into the meaning of the words sarasam jumbadari describing the tenancy created by the kabuliyat. Sarasari again is the word which has caused great trouble to the Assistant Settlement Officer. He has launched into a philological research deriving it from the Bengali word 'shor' to move. It is a Persian word meaning 'ordinary' and it has acquired several other significances. In common parlance, it is used in the sense of rough, average or without any meticulous regard to details. For instance, sarasari account or measurement means a rough account or measurement. The use of this word in this connection shows that it is an ordinary jimbadari tenancy which means, that no particular incident such as fixity of rent is attached to the tenancy The kabuliyat does not give any indication that the rent is to be fixed for ever. It is, however, argued that because there is a covenant in the kabuliyat that if at the time of any future survey any excess area is discovered the tenant should be liable to pay enhanced rent on the different kinds of land, it indicates that the only mode of enhancement was fixed by the contract and, therefore, the landlord is not entitled to claim enhancement under Section 30, Bengal Tenancy Act, for rise in the price of staple food-crops. The answer to this is that at the time when the document was executed, the Bengal Tenancy Act did not come into operation and the landlord had not acquired the right of enhancing rent under Section 30, Bengal Tenancy Act Whether mention of one contingency excludes all other contingencies is a question to be determined with reference to particular circumstances of each case. This condition is an ordinary term put in most contracts of that date when only one mode of enhancement of rent was open to the landlord.

3. The next branch of this argument is that the lease created by the kabuliyat was only a confirmatory lease as the tenancy existed from before and, therefore, the presumption under Section 50, Bengal Tenancy Act, should apply to these tenancies. It is remarked by the Assistant Settlement Officer that the defendants did not prove that the rent remained unchanged since the Permanent Settlement and that it was not the defendant case that the tenancies existed at the time of the Permanent Settlement. In fact, in some of these kabuliyats there has been some increase from the original rent and in all of them the expression used is 'settled,' indicating that the rent was settled at a certain figure. The use of the word settled shows that there was some variation of rent at any rate, the rent fixed by the kabuliyat did not exist from the time of the Permanent Settlement. The learned Judge on these considerations has held that the tenants have failed to rebut the presumption of correctness in favour of the Record of Rights. We do not think that in these circumstances we should be justified in interfering with the findings of the Court of Appeal below.

4. These appeals are accordingly dismissed with costs one gold mohur each.

Cuming, J.

5. I only propose to add a few words to the judgment which has just been delivered by my learned brother. Mr. Roy's argument is as to what meaning should be attached to the word 'jimbadari.' The learned Advocate contends that the word 'jimbadar' has been wrongly construed by the lower Appellate Court and he contends that the expression 'jimbadari' means a tenure-holding and that the Judge has wrongly held it to mean a raiyati holding. The meaning attached to a particular word in a particular District is a pure question of fact. Therefore, the finding of the learned Judge as to the meaning of the word 'jimbadari' is purely a question of fact and cannot be challenged in second appeal.


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