Bindeshwari Prasad and Others vs Nanhku Mahton and Others

Macpherson, J.—These seventeen second appeals arise out of as many suits u/s 30, Ben. Ten Act. The landlord of village Onda claimed enhancement of rent on the grounds that the rate of rent was below the prevailing rate of rent and also that there had been a rise in the average local prices of staple food-crops during the currency of the existing rent.

Acceding to these pleas the Munsif enhanced all the rents with effect from Section 1334-F on finding first u/s 30(a) that there was in a neighbouring village a prevailing rate of rent of Rs. 8-2-0 per bigha which the defendants should be called upon to pay, and secondly u/s 30(6) that the rise of the price of the two staple food-crops warranted an additional one anna per rupee on the rent of dhanhar lands and an additional one and a half annas per rupee on the rent of bhit lands included in the holdings. He did not specify how the enhancement was to be effected where a holding consisted partly of dhanhar and partly of bhit lands.

Defendants appealed and plaintiffs preferred cross-objections against the order u/s 30(b). The appellate Court having found that if there was any prevailing rate it had not been correctly determined, disallowed the claim for enhancement u/s 30(a) but increased the rate of enhancement u/s 30(b) to the maximum of three annas one pie in the rupee in the three cases (corresponding to appeals Nos. 674, 676 and 683) which consist of dhanhar lands, to the maximum of four annas eight pies in the rupee in the two cases (corresponding to Appeals Nos. 678 and 680) which consist of bhit lands only and to four annas in the rupee in the 12 cases where the holdings contain both dhanhar and bhit lands. The landlords have now appealed against the rejection of the claim u/s 30(a) and there are cross-objections in the first seven appeals and in Appeals Nos. 682 and 683.

The cross-objections are preferred against the enhancement allowed and against an entry in the decree of liability to pay road cess which is not mentioned in the judgment. In respect of enhancement there arises in Appeals Nos. 1648, 673, 675, 676, 677 and 678 the special question whether where there are two staple food-crops, the lower of the two rates of enhancement is the maximum which can legally be allowed. The other four cross-objections are as already indicated preferred in cases where there is only one staple food-crop.

A Deputy Collector was appointed commissioner u/s 31(b) to ascertain the prevailing rate. (It should be mentioned that Section 31-A has not been extended to the Patna District in which Onda is situated.) The commissioner reported that there was no prevailing rate of rent in respect of the lands. A Sub-Deputy Collector was then appointed commissioner, his attention being drawn to the decision of this Court in Brij Behari Singh v. Sheo Shankar Jha [1916] 2 Pat. L.J. 124. He found that the lands of the village fell into three classes which differed in value but he made no attempt to ascertain into which class or classes the lands in each holding fell or what was the rate of rent, if any for each class. He found it impossible to ascertain the prevailing rate of rent, if any in Onda. He then considered a neighbouring village named Nerut with respect to which he remarked:

I consider that the fields of Nerut compare favourably with those of Onda both as regards the capacity of their soil and fertility.

He found that there were differences in Nerut in quality of soil just as there were in Onda. As the commutation proceeding of 1910 showed that in two of the three pattis there were 302 tenants whose produce rents were commuted at Rs. 13 per acre (or Rs. 8-2-0 per bigha) whereas in the third patti there were only 130 whose rate of commutation was Rs. 11, he came to the conclusion that Rs. 8-2-0 was the prevailing rate in Nerut adding however:

I must note however, that the rents referred to above are the results of commutation of produce rent and I am not sure whether such rents should be a proper standard in comparison with the rents of the cash rent-paying lands of village Onda.

The learned Munsif however had no qualms and lightly brushed aside all difficulties. He apparently accepted the view that the prevailing rate of rent was the rate paid by the majority of raiyats in the neighbourhood holding similar lands enjoying similar advantages, as suggested by one of the Judges in Shadhoo Singh v. Ramnoograha Lall [1868] 9 W.R. 83 both without considering the cogent view that it is the rate paid for the majority of similar lands enjoying similar advantages and without the concurrence of his colleague. He apparently failed to attach any significance to the fact that in the patti in question the rent paying lands fell into three classes (1) the "old nakdi holdings;" (2) the holdings held at rents commuted u/s 40; and (3) the holdings whose bhaoli rent was subsequently commuted by private agreement, or to the superiority of quality of the lands of Nerut where the cash rent per bigha even for old nakdi holdings had always been nearly as high as the commuted rent of 1910. He strangely misread the report of the commissioner as setting out that Onda compares favourably with Nerut. As regards the term "neighbouring villages" he relied upon the words of the second alternative in the judgment of Mullick, J., in Brij Behari Singh v. Sheo Shankar Jha [1916] 2 Pat. L.J. 124 where "the prevailing rate in the neighbouring village or villages" is mentioned and on the words found in the third alternative "if no one prevailing rate can be found in any village." Whether in discussing this decision he was serious in such observations as:

It is true that these rulings cannot super sede the provisions of clear sections on the subject, but the Hon''ble Judges of the High Courts have got the power to interpret law. It is not for Subordinate Courts to say that the interpretation so placed goes to supersede the law on the subject, nor can any member of the Bar be heard in advancing such a contention. Their Lordships might have had very good reasons for holding that one mauza was quite sufficient for determining the prevailing rate

is not easy to determine. He ignored old nakdi holdings and privately com muted rent and considered that

once bhaoli holdings have been commuted to nakdi there can be no difference between old nakdi and new nakdi holdings, at least under the Bengal Tenancy Act.

As a holding (the composition of which is unknown) held by one Narayan in Onda had been commuted at Rs. 8 per bigha in 1915 there was, he thought, no reason why other tenants of Onda should hold lands at (presumably an average of) only Rs. 3 to Rs. 5 per bigha (actually Rs. 2-8-0 to Rs. 5-4-0) even if, as a third commissioner had reported "irrigation and gilandazi facilities have partially failed here and there." As however the khatas had begun to silt up owing to the negligence of the landlords he restricted the enhancement u/s 30(b) as al ready indicated.

The learned District Judge in appeal negatived the contention that the defendants and other raiyats holding at a lump rental did not hold at a rate of rent per bigha. If he meant that the average rent per bigha of the holding is a "definite rate of rent" he was clearly in error: Sri Radha Kishunji Vs. Haricharan Ahir and Others, . The basis of Section 30(a) is the division of the lands of a village into classes to each of which is attached a rate of rent; if a holding is held at a lump rental it must be the aggregate of the rents of the different plots computed in accordance with the rate appropriate to the class of each plot. On the facts found there cannot be a rate of rent for the lands of these holdings though there may be several separate rates of rent according to class of land.

As to the determination of the prevailing rate of Nerut, he held generally that the Act could not be taken to contemplate that the commuted rents should be taken as a guide for rents of raiyats holding at a cash rental and he pointed out the inequitable results which would, as in the present instance, be arrived at upon any other view. He further held, distinguishing Brij Behare Singh v. Sheo Shankar Jha [1916] 2 Pat. L.J. 124, that that decision contained nothing to justify the restriction of the inquiry as to prevailing rate of rent to one out of a number of villages adjoining the village where the holding lies, and found on the evidence that Rs. 8-2-0 per bigha even if a prevailing rate in Nerut was "not in any real sense a prevailing rate for the neighbourhood," and the lands in suit could not equitably be enhanced up to the rate of Nerut. As to Section 30(b) he found that there was no reason to refuse enhancement on the ground of neglect of irrigation works and granted enhancements as already indicated.

On behalf of the landlord Mr. Khur shaid Husnain assails the finding in appeal that even if there is a prevailing rate in the neighbouring villages it has not been correctly determined and impugns the reasons given by the appellate Court for the contrary view. Mr. A.K. Roy for the respondents supports the finding and further contends that a portion of a neigh bouring village or even the whole of it cannot satisfy the expression "neighbouring villages" in Section 30(a) and that in any case there was sufficient reason for the old nakdi raiyats of Onda "holding at so low a rate" as compared with the raiyats whose rent was commuted from bhaoli in 1910 in Nerut. He further lays stress upon Section 31(f) of the Act pointing out that the holdings of the defendants are held on lump rentals and include lands of different classes each as alleged by the landlord with a prevailing rate of its own, whereas the inference from the single rate at which a commutation was made in Nerut in two of the three pattis (and not in the third) would be that the lands situated therein were all of one class. In my opinion the contentions on behalf of the respondents cannot be gainsaid.

It has been held in Kamala Prasad Singh Vs. Bankey Prasad Singh and Others, that the existence of a lump rental does not take a holding out of the operation of Section 30(a). Yet if in such circumstances that enactment is not quite inoperative in practice, the landlord in Bihar who hopes to establish the prevailing rates of rent is, as experience shows, very decidedly an optimist. In such a case he can hardly succeed except by the application of Section 31(f) which is notoriously difficult. And as set out in the latest decision on the subject, Sri Radha Kishunji Vs. Haricharan Ahir and Others, , the expression "prevailing rate" of rent means a definite customary rate per bigha current in the village at which a particular class of land is held and, as has been pointed out above, does not mean an average rate per bigha for that class and still less for all lands.

Before I enter upon the chief question of law involved, it falls to be indicated that it would be surprising if in the circumstances set out above the Sub-Deputy Collector''s estimate of the prevailing rate in Nerut accepted by the Munsif could be accurate even for that village. It appears to be based on some conception of Section 31-A, the principle of which cannot be applied to an area in respect of which the provision has not been notified: Sri Radha Kishunji Vs. Haricharan Ahir and Others, . In addition it would, even if accurate for Nerut, prima facie be inapplicable to these holdings of Onda both because the latter contain several classes of lands and because the lands of the commuted holdings in Nerut, as reported by the Sub-Deputy Collector, compare favourably in all relevant respects with the lands in Onda. But since the District Judge apparently missed the Munsif''s serious error of record in this regard to which allusion has already been made, and also the fact that there are various classes of land in the holdings, a remand to the lower appellate Court might, but for the fact that the appeal fails on another ground, have been necessary for determination of the question whether lands in these holdings or some lands in them or any of them are really of a similar description and with similar advantages to those of the commuted area in Nerut.

In my judgment the lower appellate Court has correctly held that the view of the Munsif is not really supported by the directions in Brij Behare Singh v. Sheo Shankar Jha [1916] 2 Pat. L.J. 124 by which he con sidered himself to be bound. In that decision the precise signification of the expression "the prevailing rate paid...in neighbouring villages" does not appear to have arisen for consideration and in the directions given expressions were employed which go further than the enactment warrants, unless conceivably in the peculiar case where only one neighbouring village exists, as is not the case with Onda. The expression contemplates a rate of rent (doubtless reminiscent of the pargana rate), which prevails in the neighbourhood generally and not merely in one neighbouring village or area of such village, least of all when in the latter case it is fortuitous.

The legislature had in view the normal circum stances of the neighbouring villages as a whole and contemplated that it should be ascertained by local inquiry whether there exists therein a definite customary rate per bigha for land of a similar description and with similar advantages to particular land of the holding in suit. If such a rate of rent does not exist in those villages for that class of land, there is no prevailing rate for it in those villages such as is contemplated by Section 30(a), and the landlords'' application must fail. A rate of rent prevailing in one neighbouring village is not the prevailing rate for neighbouring villages. And for the best of reasons, a single neighbouring village may well have its own fortuitous circumstances, whereas a comparatively safe inference can be drawn as to the pre valence of a rate which obtains in several villages for land of a similar description and with similar advantages. In Sri Radha Kishunji Vs. Haricharan Ahir and Others, their Lordships in remanding the case definitely directed that the commissioner was to ascertain whether there was in the neighbouring villages a definite prevailing rate of the kind described. It is clear therefore that the District Judge committed no error of law in determining that the prevailing rate had not been correctly determined.

I am further inclined to accept the view that in any event, if the rate of rent was or, as in most of these cases, the rates of rent wore, found to be low in comparison with a prevailing rate or rates if such exist, for lands held on a cash rental which is the result of com mutation of produce rent, the defendants would, if there was no other evidence available, have "sufficient reason for holding at so low a rate." Indeed it seems to me doubtful whether a rate of rent based upon such commuted rents can at all be said to exist within the meaning of Section 30(a).

Mr. Baldeo Sahay, who replied for the petitioners, urged that a still further commission should be issued u/s 31(b). But the issue of a commission is discretionary and it is abundantly clear from what has transpired that it could serve no useful purpose. The appeals therefore fail and must be dismissed with costs.

As regard the cross-objections, it is correct that the liability to pay road cess in addition to the enhanced rent ought not to have been inserted in the decree since the point is not mentioned in the judgment. So, although there is no substantial prejudice since the payment is provided for by statute, it must be re moved. To this extent all the cross objections are allowed. As to the objections already enumerated in which there were enhancements at three annas one pie or four annas eight pies according as the land was exclusively dhanhar or exclusively bhit, no point of law arises in second appeal and they must, except as above, be dismissed.

In respect of the remaining appeals the learned District Judge gives as the reason for an enhancement of four annas that the holdings are approximately half dhanhar and half bhit. But this reason is meaningless and the figure cannot be defended. Even if it were an average of the two maxima, as it is not, the implication would be that the aggregate rents for the dhanhar and for the bhit are equal and consequently (in view of the finding as to area) the rent per bigha for dhanhar is the same as the rent for bhit which is contrary to all experience. It is in reality an introduction u/s 30(b) of the old fallacy of average rent so rampant u/s 30(a). The fact is that unless the landlord is able to distinguish in lump rental the aggregate rent for bhit and the aggregate rent for dhanhar (and this is not done in the pre sent instance) it is impossible to predicate that an enhancement exceeding the lower of the two rates is not beyond the: admissible maximum and therefore illegal (unless conceivably where it is very slightly over the lesser maximum.) Actually there is no evidence as to the proportion in which rent for dhanhar and rent for bhit enter into the lump rental and it may obviously vary endlessly even when the areas are equal.

In the present instance calculation shows that a rent per bigha approximately of Rs. 4-8-0 is assumed by the lower appellate Court for bhit and of Rs. 2-8-0 for dhanhar for which assumption there is no warrant. Where, as in this instance, the landlord has failed to indicate any particular portion of the lump rental as de rived from the class of land (here bhit) in respect of which the higher maximum rate of enhancement is allowable, no rate above the lower rate of enhancement can be certainly legal. A conjectural figure to be permissible must be within the limit of certain legality. I would guard myself against appearing to hold that in no case could an enhancement above the lower maximum be legal; for instance, there might conceivably be evidence establishing that the proportion of the rent to which the higher maximum enhancement would be applicable, could not be less than a definite part of the lump rental and the higher maximum might be applied to that part only.

Here however there is no such evidence and even if in all cases it is not physically impossible to apply the two different rates of enhancement or an intermediate rate, at any rate in the present instance the land lord, on whom the onus lay, has adduced no evidence on which anything above the lower rate could be decreed. I would therefore allow in part the cross-objections in Appeals Nos. 1648, 673 and 675 to 678 inclusive, reduce the enhancement to three annas one pie in the rupee and direct parties to bear their own costs in the cross-objections.

Fazl Ali, J.

I agree.