Babu Rajniti Prasad Singh and Another vs Ramudgar and Others

Wort, J.—This is the landlord''s appeal. The matter arises out of two actions and the judgment in this case will govern both the actions and also both appeals. Appeal No. 274 of 1935 arises out of an action claiming rent for the years 1537 to 1339 and 12 annas kist of 1340 and in Appeal No. 361 of 1935 rent was claimed for the years 1337 to 1340 Fasli. The substantial question which arose was whether the rent reserved by the kabaliyat of 1913 contravened the provisions of Section 29, Bihar: Tenancy Act. The trial Judge, on the footing of certain authorities to which I snail presently refer, came to the conclusion that the plaintiffs should have judgment for full rent, namely Rs. 20 per bigha in each case. That decision was reversed on appeal to the District Judge who has arrived at the conclusion that the kabuliyat did contravene the provisions of the Act. The kabuliyat I have referred to was executed by the tenant in 1913 with regard to the bhaoli land already in occupation together with new lands at a rental of Rs. 10 per bigha for a period seven years and thereafter at a rent of Ks. 20 per bigha. The learned Judge in the Court below has held that the landlords are not entitled to recover rent either at the rate of Rs. 10 per bigha or at the rate of Rs. 20 per bigha, coming to the conclusion in these words:

The effect of the kabuliyat was that the rent for the portion previously held by the appellant was enhanced and was subsequently again doubled, but the respondents claimed that the appellant had surrendered his former holding and subsequently took a fresh settlement, with the result that the provisions of the Bihar Tenancy Act regarding enhancement of rent did not apply.

The learned Judge then goes on to refer to another issue in the case which was whether the tenants had surrendered their holding. The finding with regard to that matter was against the landlord-appellants. Two questions arise: the first is as to the legality of rent at the rate of Rs. 10 per bigha, and secondly the enhanced rent at the rate of Rs. 20 per bigha. The argument addressed to us is based on several decisions of this Court particularly the decision in Kuman Das and Another Vs. Radhika Singh and Another, , by Fazl Ali and Chatterji, J.J. There the question considered was not the provisions of Section 29, Bihar Tenancy Act, but the question whether the enhanced rent was a penalty. A number of decisions of this Court were referred to in the judgment including two cases reported in Kuman Das Vs. Kachali Mandal and Another, , and Kuman Das v. Tilakdhari Singh 9 P.L.T. 184 : 107 Ind. Cas. 538 : I.L.T. 40 Pat. 94 : 9 P.L.T. 161 : 105 Ind. Cas. 20. The first was my decision and the second was a decision by Sir Dawson Miller and Mullick, J. In the later case the question again was whether the rent at an increased rate after a certain period was a penalty, and it was decided that it was not and did not contravene the provisions of Section 74, Contract Act. Sir Dawson Miller in the course of the judgment made this observation which is very important from the point of view of the question which we have to decide:

At the end of the term, the tenant unless he has acquired an occupancy right, which is not the case here, will be bound to give up the land and if he remains in possession he will be a trespasser and may be ejected by the landlord.

The only question in that case is whether the contract entered into by the tenant to pay enhanced rent after a period of seven years was in the nature of penalty. It is quite clear that there was no question of there being any occupancy rights existing, but in this case it is otherwise. I would have come to the conclusion that there was no question of occupancy rights in that case even had there not been the observation of Sir Dawson Miller as it is impossible to think that the Court disregarded the plain provisions of Section 29, Bengal Tenancy Act, if there had been any question of occupancy rights existing. In the case decided by Fazl Ali, J., reference was made to two unreported decisions one by Adami, J., sitting alone, and the other by Adami and Bucknill, J.J. But in both those cases, having referred to the record it is clear that there was no question of occupancy rights. The question, therefore, to determine is whether in the first instance the rent reserved at the rate of Rs. 10 per bigha in what was a substantially different holding contravened the provisions of. Section 29, Bihar Tenancy Act, as was decided by Mr. Madan, the District Judge, and secondly whether the enhancement (Rs. 20 per bigha) after a period of seven years contravened the section. As regards the latter question, I do not think there can be any reasonable dispute. That question in similar circumstances was decided by a Bench of the Calcutta High Court consisting of Sir Lawrence Jenkins, C.J. and Mookerjee, J.: Sreemutty Mahamaya Kar v. Kishore Chand 18 C.W.N. 738 : 21 Ind. Cas. 948 : AIR 1914 Cal. 64 : 18 C.L.J. 502. I propose to read the whole of the judgment which is very short:

This case does not require citation of any authority. It is clear from Section 29, Bengal Tenancy Act, that the rent cannot be enhanced so as to exceed by more than two annas in the rupee, the lent previously payable by the raiyat. The lower Appellate Court has found that this rent was Rs. 40-2-0 and the reference to Rs. 57 was merely a device. That finding is conclusive in this case.

That seems to me to be conclusive in the present case as regards the enhanced rent at the rate of Rs. 20 per bigba. I should have added as an introduction to this part of my observations that there can be no serious doubt that the tenants in this case were occupancy raiyats of that portion of the land which they originally occupied, that is to say prior to 1913. They are recorded in the Record of Rights which was published in 1903 as kaimi tenants and I cannot believe that two Judges, the District Judge and the Munsif, considered the question of Section 29 had this not been the fact. I come therefore to the question of rent reserved at the beginning of this tenancy at the rate of Rs. 10 per bigha. There are a number of authorities on this question and I content myself by making a passing reference to them. In Taramani Chaudhurani v. Safatulla Mandal 22 Ind. Cas. 854 : 22 Ind. Cas. 854 : AIR 1914 Cal. 613 a decision of a Single Bench of the Calcutta High Court, it was held that a rent reserved for what was substantially a new holding did not contravene the provisions of the Act. Again to the same effect is the decision in Sasi Kanta Acharjee Bahadur Vs. Genda Sheikh and Others, , the decision in this latter case was based on Garibulla Sheikh v. Jnanada Sundari Roy 32 C.L.J. 134 : 57 Ind. Cas. 998 : AIR 1920 Cal. 694 a judgment of Sir Ashutosh Mookerjee, Actg. C.J. and Fletcher, J., where it was held that:

Where an occupancy raiyat agrees to pay a consolidated rent for the lands of the original holding as also the encroached lands, whereof they took possession without the consent of the landlord, Section 29, Bengal Tenancy Act, is not applicable, as a new holding is constituted.

I think the cases to which I have referred are sufficient authority for the proposition that the reservation in this case under the kabuliyat of 1913 for a rent at the rate of Rs. 10 par bigha does not contravene the provisions of Section 29, Bihar Tenancy Act, and to that extent the decision of the learned Judge in the Court below is erroneous. Instead of dismissing the suit, in my judgment, he should have given a decree to the plaintiffs for rent at the rate of Rs. 10 per bigha. To this extent the appeal succeeds, the plaintiff-landlords being entitled to a decree for rent at the rate mentioned. The plaintiffs will also be entitled to damages at the rate of six per cent, per annum on the rent decreed, and the decree will bear interest at the rate of six per cent, per annum until payment. In the circumstances, each party will bear their own costs.

Rowland, J.

I agree.