Bhajan Kahar and others vs Jogesh Prasad Singh

James, J.—These are four appeals from the decision of the Subordinate Judge of the first Court of Gaya. The appeals arise out of two suits for arrears of rent. At the time of the preparation of the Record-of-Rights the tenant defendants had two holdings, one of which bore a rental of Rupees 15-3-0, while produce rent was payable for the other. At some time after final publication of the Record-of-Rights the produce rent was commuted to cash under S. 40, Ben. Ten. Act, apparently at the rate of Rs. 58-5-3 a year. In 1926 the landlord held a decree for arrears of rent in respect of this last holding, and further arrears had accumulated. The tenants thereupon executed a registered document by which they surrendered to the landlord a large part of their holding in settlement of his claim for arrears of rent, retaining 2.11 acres for which they undertook to pay an annual rental of Rs. 26-15-0. In 1925 the plaintiff had instituted a suit for enhancement of the rent of the smaller holding. By consent the rent had been raised from Rs. 15-9-0 to Rs. 20-14-3. These are the findings of the Subordinate Judge, but he gave in each suit a decree for a lesser amount than what the plaintiff had claimed. From the calculation of area and rental in the deed of surrender he came to the conclusion that Rs. 21-9-3 was the correct rent for the area retained by the tenants. In the other suit he found that rent had been illegally enhanced by compromise because the compromise was for enhancement at more than two annas in the rupee: and he gave to the plaintiff a decree for rent at the original rate. The defendants have appealed against each of these decisions, and appeals have also been preferred by the plaintiff which have been treated as cross objections in each case.

Mr. S.N. Rai on behalf of the tenant appellants, argues in the first place that the suit for the larger area should have been dismissed on the ground that it was instituted in respect of a part of the holding but the finding that effect was given to the deed of surrender is a finding of fact and in this second appeal we must proceed on the facts as found by the learned Subordinate Judge. Mr. Rai argues that if effect was given to the deed of surrender, effect must have been given to a condition contained in it that the area retained by the tenants shall be amalgamated with their holding of 1.96 acres to make up a single holding at an annual rental of Rs. 47-13-3; and he argues that as the landlord has instituted two suits, one in respect of each khatian of the Record-of-Rights, each of the suits relates to part of the holding and one or both of them ought therefore to be dismissed.

But this deed of surrender was executed by the tenants and it does not show that the landlord accepted all the terms contained in it. It is an offer by the tenants to surrender 3.84 acres of land and to retain 2.11 acres at a rent of Rs. 26-15-0. That the offer was accepted to this extent by the landlord is clear, since he has instituted the present suit on the basis of that document. But the tenants were unable to adduce any evidence to show that the land in the two khatians had actually been amalgamated in the landlord''s jamabandi into one holding, and that being so, it cannot be said that these lands do form a single holding, merely because in the deed of surrender the tenants say that they intend to regard it as a single holding. The cross-objection or separate appeal by the landlord regarding the rent of this 2.11 acres must apparently succeed. The Subordinate Judge held that as the total rent specified in the deed for the area surrendered to the landlord and for the area retained by the tenants exceeded the rental of the holding which was settled under S. 40, Ben. Ten. Act, the amount payable by the tenants must be reduced to such an amount as added to the portion specified as payable for the area surrendered would make up the original rent. But the tenants offered by this deed of surrender to take 2.11 acres at a rental of Rs. 26-15-0 and when this offer was accepted by the landlord, the rent payable by them became Rs. 26-15-0 and the provisions of S. 29 did not apply. The holding of 2.11 acres became a completely new holding and nothing in S. 29, Ben. Ten. Act, re-quires that for a new holding of this nature the rent payable shall be exactly proportionate to what may have been payable for the larger holding in respect of which the tenant has fallen into default.

The Subordinate Judge also reduced the amount claimed by the landlord for the area of 196 acres. At the hearing of the appeal the plaintiff tendered to the Subordinate Judge his decree in a suit for enhancement on 20th April 1925. The Subordinate Judge took this decree into evidence, saying that it would be of help in determining the matter in issue. Mr. S.N. Rai objects that the Subordinate Judge ought not to have taken in evidence this decree at so late a stage, citing the criticism made by Sir George Lowndes on the procedure followed in this Court in Parsotim Thakur v. Lal Mohar Thakur, 1931 PC 143 = 132 IC 721 = 58 IA 254 = 10 Pat 654 (PC) It was there pointed out that the provisions of O. 41, R. 27, are not intended to allow a litigant who has been unsuccessful in the lower Court to patch up weak parts of his case and fill up the omissions in the Court of appeal. But from the form of the order of the learned Subordinate Judge it appears that he required this document to enable him to pronounce judgment, because he desired to ascertain in what manner this apparently illegal enhancement had been made, and in his view of the matter this decree passed on compromise was fatal to the claim of the plaintiff to enhanced rent. It cannot be denied that this decree is one which is very much open to criticism, in view of the manner in which the Munsif contravened the provisions of S. 147-A, Ben. Ten. Act, since by decreeing the suits in terms of the compromise, he allowed two enhancements, each of which was illegal, since one contravened the provisions of S. 29 and the other those of S. 40-A. But since the compromise was thus decreed, the decree cannot be treated as nullity merely because the Court did not act in conformity with S. 147-A. The decision reported in 69 I C 616 (2), determines that matter so far as this Court is concerned.

The result is that the plaintiff must get the benefit of his illegal enhancement which has passed into a decree. The appeals of the tenants Nos. 875 and 876 must be dismissed and the appeals of the landlord Nos. 918 and 919 must be allowed. The decree in the suit out of which Second Appeal No. 875 arises will be at the rate of Rs. 26-15-0 a year including, cess; and the decree in the other suit will be at the rate of Rs. 20-14-3. I am obliged thus to give effect to these enhancements made by the plaintiff. It is to be regretted that the defendants should have decided to appeal from the decision of the learned Subordinate Judge, thereby inciting the plaintiff to appeal, and if the matter had been res integra, I would certainly have supported his decision, which I myself think was right. In these matters I am bound by precedents; but I trust that no remark made in this judgment will chill the learned Subordinate Judge''s evident desire to apply the provisions of the Bengal Tenancy Act correctly. In that matter the civil Courts have not always acted as they ought to have done, of which the decree based on the compromise is an outstanding example. I am obliged to allow the cross-appeals, but the Court has discretion in the matter of costs; and I direct that each party may bear his costs throughout.