Bishun Pragash Narayan Singh vs Achaib Dusadh and others

Dawson Miller, C.J.—This is an appeal under the Letters Patent from the decision of a Single Judge of the Court overruling the decision of the special Judge who had affirmed that of the Assistant Settlement Officer.

The appellant took proceedings under S. 105 of the Bengal Tenancy Act as landlord against a large number of tenants claiming in some cases enhancement of rent under S. 30 of the Act and in other cases additional rent under S. 52 (a).

The present appeal is concerned only with the claims under the latter section in respect of land held by the tenants in excess of the area for which rent had been previously paid by them. In certain cases it was found that the tenants had been in occupation of their holdings since before the. survey and settlement operations of 1898 and paying rent therefor to the landlord, and that the settlement and Record-of-Rights finally published in March, 1917 showed that although the rent remained the same, the area of their holdings was in excess of that for which they had been paying rent according to the previous settlement. The Assistant Settlement Officer before whom the case came held that in the cases mentioned the landlord was entitled to an additional fair rent for the excess area after making an allowance of 5 per cent. for probable difference in area extraction. An appeal by the tenants to the special Judge was dismissed. On second appeal to this Court the case came before Mr. Justice Ross who took the view that in all such cases, in order to prove that the lands in respect of which an additional rent is claimed, are in excess of the area for which rent was previously paid, the landlord must show that the area included in the tenancy at its inception was less than that subsequently shown by measurement to be in occupation of the tenant. It followed from this, in his view, that although the tenant''s holdings were proved by scientific measurement at the previous survey and settlement operations, made some twenty years earlier, to have been less than that for which they were still paying the same rent as shown by the subsequent survey, the landlord could not recover any additional rent in respect of the excess area. For this finding he relied upon the decisions in the following cases: Gouri Pattra v. H. R. Reily (1892) 20 Cal. 579, Rajendra Lal Goswami v. Chunder Bhusan Goswami (1902) 6 C.W.N. 318 and Rajkumar Pratab Sahay v. Ram Lal Singh (1907) 5 C.L.J. 538.

With great respect to the learned judge I am unable to concur in the view taken by him. On referring to S. 52 (a) of the Bengal Tenancy Act it does not appear that the tenant''s liability to pay additional rent is limited to cases where the area is in excess of that comprised in the settlement at its inception, but merely to cases where the land is proved by measurement to be in excess of the area for which rent has been previously paid by him. The section provides as follows :-

"52 (1) Every tenant shall-

(a) be liable to pay additional rent for all land proved by measurement to be in excess of the area for which rent has been previously paid by him unless it is proved that the excess is due to the addition to the tenure or holding of land which having previously belonged to the tenure or holding was lost by diluvion or otherwise without any reduction of the rent being made."

The exception in the latter part of this section does not apply to the present case. By Cl. (b) of the section the tenant is entitled to a reduction of rent in similar circumstances where the measurement shows a deficiency in the area of his tenure or holding as compared with the area for which rent has been previously paid by him. And in the case of some of the tenants the Assistant Settlement Officer allowed such reductions but we are not concerned with them in the present appeal.

Where no previous measurement has been made upon a scientific basis from which the actual area of the land held by the tenant can be accurately determined and compared with the area proved to be held at the date of the claim, no doubt the landlord is confronted with a more serious problem in proving an excess of area, and generally speaking he could only discharge the burden of proof in the case supposed by shewing that the area of the tenure or holding at the inception was less than that subsequently shewn by proper measurement to be in occupation of the tenant. Consequently it was held in Gouri Pattra v. Reily (1892) 20 Cal. 579 that the mere fact that a measurement made under Chapter X of the Bengal Tenancy Act, 1885, shewed the tenants to be in occupation of lands in excess of the areas shewn in the zamindari papers and rent receipts did not necessarily prove that the landlord was entitled to an additional rent. It is important to bear in mind that in that case it was found that at no previous time had there been a measurement of the lands in suit, and that the actual areas let out were originally ascertained by guess work without any accurate survey, and it was the areas so arrived at that were entered in the landlord''s papers. The Court thought it would be impossible in these circumstances to find that the areas were accurately stated in the landlords'' papers. They added that it was for the Zemindar to shew that the lands were in excess of those for which rents were being paid and that to do this it was for him to shew what those lands were and what were the terms of the original settlement and what was the process of measurement, if any, adopted. This has been relied on for the proposition that in all cases, even if there has been an intermediate settlement the landlord must go back to the inception of the tenancy and prove what area was then settled. I do not think the decision can be held to support this view. In dealing with the object of Chapter X of the Bengal Tenancy Act the judgment states that it is to enable the landlords and tenants to know their relative position towards one another and not to disturb previously existing relations unless it can be shewn that they have terminated, and adds:

"The Zemindar in this case is bound to shew how the areas in the last settlement with the ryots were ascertained and that the ryots are now in possession of excess lands and consequently liable to pay additional rent therefor."

The settlement and Record-of-Rights defines the relationship between landlord and tenant in various respects including the area of the holdings for which rent is paid and is presumed to represent what is the relationship between them until the contrary is proved. The settlement in 1898 was made in the presence of both parties and accepted without objection as representing the area for which rent is paid. The effect of such a settlement would be to throw the onus upon the party questioning it, and in this case the tenant has to shew that it did not accurately represent the true state of affairs. In the present case therefore it must be presumed that the settlement of 1898 was correct and the initial onus cast upon the landlord is discharged. The subsequent settlement shews an area arrived at by the same process of measurement to be in excess of that for which rent has been previously paid.

The later decisions which have been referred to are based upon the decision in Gouri Pattra''s case (1) and do not carry the matter any further in so far as the general principle is concerned. In none of them was there an intermediate settlement by which the area could be definitely ascertained. Rajendra Lal Goswami v. Chandra Bhusan Goswami (1902) 6 C.W.N. 318 was complicated by the fact that the excess claimed by the landlord was alleged by the tenant to be due to the addition of land previously belonging to the tenure but lost by diluvion which is not the case here. In Rajkumar Pratab Sahay v. Ram Lal Singh (1907) 5 C.L.J. 538 there was no intermediate settlement and therefore the original settlement had to be proved before it could be shown that the lands were in excess of those for which rent was previously paid. In the later case of Durga Priya Choudhury Vs. Hazra Gain and Others, it was definitely held that it is not in all cases necessary for the landlord to prove the area of the holding at the time of the inception of the tenancy. It is sufficient for the landlord to establish that since the inception of the tenancy rent has been assessed on the basis of a certain area and that the tenant is in possession of lands not included in that area and on which no rent was assessed.

In the present case the previous survey and settlement khatiyan were produced and proved and from these it appears on comparison with the recent survey, in which the method of measurement was the same, that the tenants are holding lands in excess of those for which they were paying the same rent since 1898. The only point which appears to have been urged by the tenants on appeal to the Special Judge was that the survey measurements must have been inaccurate in argument which did not commend itself to the Special Judge. In this respect I concur with his view. On the facts proved I think the appellant has satisfied the burden of proof required by S. 52 of the Act and is entitled to the additional rents such as may be just and equitable upon the excess areas found by the Asst. Settl. Officer. The appeal is allowed. The decree of Ross, J., is set aside and that of the Asst. Settl. Officer restored. The appellant is entitled to his costs here and before Ross, J.

Adami, J.

The appellant in applications under S. 105 read with S. 52 (1) (a) of the Bengal Tenancy Act claimed additional rent in respect of lands in the holdings of the respondents, his tenants, in village Hiramani which, according to his allegation, were shown by the measurement entered, the Record of Rights to be in excess of the area for which rent had been previously paid by them. He asserted in the application that at their inception of the tenancies the area of the holdings had been determined by the measurement with a pole of ten cubits.

The Asst. Settl. Officer decided that the appellant had failed to prove either actual encroachment or that there was a practice of settlement of land by measurement in the estate and, if there was such a practice, how the measure adopted for the purpose compared with the present survey measure. He found however that the respondents had held the tenancies from the time of the previous settlement, the Record-of-Rights of which was finally published in 1898, and that there had been no alteration of rent since that year, and held that the appellant-landlord was entitled to additional rent for any excess area found on comparison of the survey area of 1898 with the area shown in the Record of-Rights published in 1917. Therefore, after making an allowance of 5 per cent, for probable difference in the area extraction of the same field by different persons at different times he assessed a fair rent in respect of the excess area so found and granted the application to that extent.

The Special Judge, on appeal by the present respondents, upheld the decision of the Asst. Settl. Officer, finding that at each survey the area was determined by a scientific process and that the comparison gave sufficient evidence of an excess.

On second appeal the learned Judge of this Court has disagreed with the lower Courts and has held, basing his decision on Gouri Pattra v. H. R. Reilly (1892) 20 Cal. 579, Rajendra Lal Goswami v. Chunder Bhusan Goswami (1902) 6 C.W.N. 318 and Rajkumar Pratab Sahay v. Ram Lal Singh (1907) 5 C.L.J. 538. that, in order to show that the lands in respect of which an additional rent is claimed are lands held in excess of those for which rent was paid, the landlord must prove an excess over the quantity of land included in the tenancy at its inception, and that the criterion is the area of the holding at the inception of the tenancy and not any intermediate measurement. The learned Judge refused to accept the argument that the present case should differentiated from the cases on which he relies because in the present case there were two survey measurements in both of which the same scientific standard was employed, as he finds that there is no authority to support the view and no justification in principle to support the argument.

Now Section 52 (1) (a) is perfectly clear in its terms, it provides that every tenant "Shall be liable to pay additional rent for all land proved by measurement to be in excess of the area for which rent has been previously paid by him," and sub-Section (2) runs: "In determining the area for which rent has been previously paid, the Court shall, if so required by any party to the suit, have regard to-

"(a) the origin and conditions of the tenancy, for instance whether the rent was a consolidated rent for the entire tenure or holding,

"(b) the length of the measure used or in local use at the time of the origin of the tenancy as Compared with that used or in local use at the time of the institution of the suit."

In the case of Gouri Pattra v. H. R. Reilly (1892) 20 Cal. 579 the landlord sought to prove the area for which rent had been previously paid by the tenants by entries of area in his zamindari papers and in rent receipts. There was no evidence in that case that there had been any measurement of the lands according to any actual standard and it was found that the areas shown in the zamindari papers were arrived at by guess work. The Court rightly held that the areas shown in the papers could not be accepted. The judgment shows that it was assumed that the tenants had required the Assistant Settlement Officer to have regard to the points mentioned in sub-Section (2). In absence of other evidence of measurement the Court decided that it was for the landlord to show what were the terms of the original settlement and whether it was by any, and if so, by what process of measurement.

In the case of Rajendra Lal Goswami v. Chunder Bhusan Goswami (1902) 6 C.W.N. 318, the landlord sought to base the comparison on the area shown in the revenue survey papers of 1854. The learned Judges appear to have considered that sub Section (2) of Section 52 was mandatory, whether the tenants required the Court to have regard to the origin of the tenancy or not, and held that the landlord must show that the alleged excess is really an excess over the area of the tenure as originally created. They state:-

"We think the language of sub-Section (2), Clause (a), by referring to the origin and conditions of the tenancy as some of the circumstances which the Court is required to have regard to, shows that the expression ''''the area for which rent has been previously paid" must be understood to mean the "area with reference to which the rent previously paid had been assessed or adjusted."

The decision in Rajkumar Pratab Sahay v. Ram Lal Singh (1907) 5 C.L.J. 538 followed that in Gouri Pattra v. H. R. Reilly (1892) 20 Cal. 579, as did the decision in Ratan Lal Biswas v. Jadu Halsuna (1905) 10 C. W. N 46, but in both of these cases the landlord sought to base the comparison on entries in zamindari papers and receipts; no scientific previous measurement was shown.

The above cases are authorities for the principle that where there is no good evidence of scientific measurement, assessment or adjustment since the inception of the tenancy, the landlord will have to prove ''that was the area at the origin of the tenancy, or that the lands originally settled were defined by boundaries which have been encroached upon, or that rent was settled at a certain rent per bigha.

In Rajendra Lal Goswami v. Chunder Bhusan Goswami (1902) 6 C.W.N. 318 and in Akbar Ali Mian v. Mt. Hira Bibi (1912) 16 C. L. J. 182= 15 I.C. 332, it has been held that the words " the area for which rent has been previously paid " in Section 52 mean "the area with reference to which the rent previously paid has been assessed or adjusted " and in the case of Durga Priya Choudhury Vs. Hazra Gain and Others, , where the District Judge has held that it was necessary for the plaintiff to prove the area of the holding at the time of the inception of the tenancy. Sir Asutosh Mukherji, Acting C. J., held that the view taken by the District Judge was erroneous and that it was sufficient for the landlord to prove that since the creation of the tenancy rent had been assessed, that when rent was last assessed the assessment was on the basis of a certain area and that the defendants were in possession of land on which no rent was assessed at the time.

Now in the present case there is nothing to show when the tenancies were created, or how rent was assessed, whether the rent was a consolidated rent or was assessed at a certain rate per bigha, or whether there was any measurement of the holdings at the inception. We have the evidence, however, of the Record of-Rights published in 1898 that a certain rent was then being paid for a holding of a certain area. During the preparation of the Record- of-Rights the holding was measured scientifically and the area shown in the record was the result of the measurement; the settlement proceedings were carried on publicly and the parties may be presumed to have been present and to have had every opportunity of objecting. The rent payable by the tenants was ascertained and Recorded, and it must be presumed that the tenants accepted that rent as the rent payable for the area as recorded. They did not come forward and prove that the area-recorded was less than the area of the holding at its inception. The entry shows that the rent entered there was either the rent for the area which the tenants had been paying previous to 1898, or was the rent assessed or adjusted after dispute during the settlement proceedings between the parties as to the amount payable. In my opinion the area shown in the record of 1898 was the area with reference to which the rent previously paid by the respondents was assessed or adjusted. The respondents continued to pay the same rent for nearly twenty years and at the end of that time in the settlement of 1917 it was found after scientific measurement by the same standard that the area of the holding for which that rent was being paid had increased. I am of opinion that according to the clear wording of S. 52 (1) (a) the landlord was entitled to additional rent for the land in the holdings which was not covered by the area entered in the Record-of-Rights of 1898.

I would therefore allow the appeal with costs and set aside the decree now appealed against.