Bhajan Singh and Another vs Motipur Zamindari Co. Ltd.

Manohar Lall, J.—This is an appeal by the defendants in a rent suit brought by the Motipur Zamindari Co., Ltd. The suit was for recovery of arrears of rent for 1341 to 1344 Fasli in respect of certain areas of land with a certain jama after remitting man pagri. The only defence which requires notice is that the area and the jama of the holding were not as stated by the plaintiff. The trial Court held that the area and jama of the defendants were as stated in the plaint, namely 15 bighas, 5 kathas and 9 dhurs with jama of Rs. 49-15-6. The matter was then taken in appeal before the learned District Judge of Muzafferpur who held that the area of the suit land was 15 bighas, 5 kathas and 9 dhurs and that the correct rental was Rs. 48-12-3 including cess after deducting one rupee as mafi pagri.

This apparently is a finding of fact which cannot be interfered with by me.

But the learned advocate for the appellants vehemently contended that the Courts below having found that there had been an enhancement of more than two annas in the rupee their judgments are vitiated and should be set aside. It was also argued that the Courts below were not justified in holding that the survey entry was incorrect and, therefore, this was a serious error in law which should be corrected by this Court. Mr. Mehdi Imam further argued that the Courts below erred in law in ignoring the admission of the plaintiff or of his witness and suggests some sort of estoppel,

I am of opinion that all these contentions are without any substance. The trial Court pointed out that it was true that the plaintiff''s patwari stated that in the survey entry the area increased to 24 bighas, 17 kathas and the jama was increased to Rs. 81-12-0 after survey with the consent of Sheosaran, ancestor of the defendants, but pointed out that this statement was his inference with reference to the village papers as he was not present at the time of survey and so refused to act upon this statement. How it was open to the learned Munsif not to rely upon the so-called admission and the weight to be attached to that admission was a matter for that Court of fact and in this he has committed no error in law.

An estoppel was sought to be raised on the ground that certain rent receipts for 1327 Fasli showed an area of 24 bighas 17 kathas 7 dhurs with a jama of Rs. 59-15-0 while the receipts for 1328, 1329, 1330, 1343 and 1342 showed an area of 17 bighas 2 kathas 11 dhurs with a jama of Rs. 40-14-0. The trial Court gave reasons as to why these receipts could not assist the defendants. It may be that these reasonings are not sound but that has nothing to do with this Court in second appeal. It is sufficient to say that the Court of fact upon a consideration of all the evidence came to the conclusion, relying upon the jamabandi of 1303, that the original area of the holding was 18 bighas, 11 kathas and 5 dhurs at a rental of Rs. 3-2-0 a bigha and that it was clear that no lump rental was fixed for a certain block of land within defined boundaries.

From these facts he came to the conclusion that with the consent of the parties the jama was fixed at Rs. 3-2-0 a bigha. The learned District Judge also considered the matter carefully and points out that the plaintiffs produced their jamabandis from 1303 Fasli with counterfoil receipt books for the year 1316 to 1341 as also the mutation register. He examined the situation as indicated by the survey record of rights and after giving the entry therein a statutory presumption of correctness considers that in the circumstances of this case the error regarding the area or rental was most likely to have crept in because the new settlement alleged by the plaintiffs was in 1303 Fasli corresponding to 1896 A. D. whereas the record of rights was finally published in 1898 and therefore the proceeding must have started about 1895.

He agreed with the Munsif in believing the plaintiff''s papers as showing the correct situation regarding the rental and transactions relating to this holding and in the end he held:

I, therefore, believe that the khatian rental in this case was incorrect for the area shown in the khatian.

Now this is a finding of fact. It may be right or it may be wrong, but nonetheless it is a finding of fact which the Court of fact had complete jurisdiction to arrive at.

I do not see any error of law which has been committed by either of the Courts in holding that the area of the land in possession of the defendants was 15 bighas, 5 kathas and 9 dhurs and that the rental thereof was Rs. 48-12-3 including cess. Nor do I see any question of illegal enhancement which arises in view of this case. The learned District Judge gave relief to the defendants on a small point which related to Re. 1-3-3 on account of mankhan.

It was lastly argued that the Courts below were in error in giving damages to the plaintiff at 25 per cent, as Section 68 has been repealed by Act VIII of 1937 which came into force on 10th March 1938. Mr. Syed Ali Khan on the other hand argues that as the present suit was instituted on 23rd September 1937, the plaintiff''s right to claim damages was not affected by the latter legislation. He relied upon the decision of this Court in First Appeal No. 121 of 1938 Reported in Chhatar Singh Vs. Syed Shah Qasim Ghani and Another, disposed of on 27th March of this year where Rowland J., in delivering the judgment of the Bench dealt with the question which arose u/s 67, Bihar Ten. Act. It was pointed out by the learned Judge that:

Previous to that amendment the statutory rate of interest was 12 1/2 per cent, per annum. The amendment declares that ''An arrear of rent shall bear simple interest at the rate of six and a quarter per centum per annum.'' The amendment came into force on 29th December 1937 and the decree of the Subordinate Judge was passed on 21st December 1937, that is to say it was clearly a correct decree on the date when it was passed.

In the present case the decree was passed on 16th July 1938, that is to say after the amendment came into force and therefore the decree was not a correct decree on the date when it was passed. Much reliance was placed by the learned advocate on the next observation in that judgment where it was observed: "The new Section 67 does not apply as it is not expressed to be retrospective". In the present case, however, I find that Section 68 had been repealed on the date, when the Court came to deliver this judgment. No litigant had any vested right in the provisions of Section 68. That section only gave a discretion to the Court that:

If, in any suit brought for the recovery of arrears of rent, it appears to the Court that the defendant has, without reasonable or probable cause, neglected or refused to pay the amount of rent due by him, the Court may award to the plaintiff, in addition to the amount decreed for rent and costs, such damages, not exceeding twenty-five per centum on the amount of rent decreed, as it thinks fit.

In my opinion that discretion has been taken away by the repeal of that Section and the Court in the present case could not resort to it as on the date of the judgment that section was no longer in existence. The Court ought to have proceeded u/s 67. I am bound by the decision of the Division Bench of this Court just referred to where it has been held that "the new Section 67 has no application as it is not expressed to be retrospective". The new Section 67 was introduced by Section 9 of Bihar Act VIII of 1937. It provides in the first Sub-clause of Section 67 that:

An arrear of rent shall bear simple interest at the rate of six and a quarter per centum per annum.

The old Section 67 provided that:

An arrear of rent shall bear simple interest at the rate of twelve (and a half) per centum per annum from the expiration of that quarter of the agricultural year in which the instalment falls due (to the date of payment or of the institution of the suit, whichever date is earlier).

I, therefore, order that in lieu of damages which have been granted by the trial Court at the rate of 25 per cent, a decree should be given to the plaintiff in terms of the old Section 67 by calculating simple interest at the rate of 12 1/2 per cent, per annum from the expiration of that quarter of each agricultural year for the rental of each of the years which are the subject of the present suit. The office will prepare a modified decree on these lines. As the appellant has substantially failed in this appeal the appeal is dismissed with costs.