Deonandan Prasad Singh and Others vs Pardip Singh and Others

Pande, J.—These appeals are from appellate decrees dated 23rd February 1943, of the Subordinate Judge, first Court, Patna, which modified the decrees dated 13th March 1942, of the Munsif of Barh, in suits for recovery of arrear rents of agricultural holdings. The suit holdings are within mouza Dhouria Badal Singh, touzi No. 9095 of which the plaintiffs are proprietors of 14 annas 12 1/2 dams share having separate collections from the pro forma defendants who are proprietors of the remaining share. The defendants are raiyats of the holdings at rate of rent fixed in perpetuity. The period of claim for arrear rent varies in different suits, it being 1345 to 1348, or 1346 to 1348. The defendants contend that the landlords neglected to maintain the irrigation arrangements of the mouza in proper order and this had affected the produce of the holdings in question in the years in suit. They pleaded for abatement of rent by 50 per cent, on that ground. The original Court found that the irrigation arrangements were in good order and it has not been proved that there was any appreciable deficiency in the productive capacity of the lands on account of any neglect of gilandazi. On this finding and also for the reason that the rents of the holding being fixed in perpetuity that Court held that the defendants are not entitled to any remission of rent on the ground alleged. Accordingly the Munsif granted decrees to the plaintiffs according to their claim. The learned Subordinate Judge who heard the appeals found that gilandazi work was not fully done during the years in suit and payment of rent was subject to the condition of maintenance of the irrigation arrangements in proper order. He held that the defendants were entitled to an abatement of rent by 25 per cent, for the years in suit. The plaintiffs have preferred these appeals.

The finding of the appellate Court on the point of maintenance of irrigation arrangements in proper order is challenged on behalf of the appellants. It appears that a commissioner was appointed to inspect the irrigation arrangements of the mouza. The commissioner was required by the writ to inspect eight plots. He however inspected four of them only. Of these four he found one Alang in a dilapidated and neglected condition for some years and minor breaches in the other three. The plaintiff''s Patwari stated that irrigation arrangements have been in the same condition for the last 20 years, while the defendants'' witnesses stated that it has been so for the last 10 or 15 years. These materials seemed to the Subordinate Judge to justify the finding arrived at by him which being a finding of fact cannot be re-opened in second appeal. The principal question for determination in these appeals is whether the defendants holding the lands in suit at a rate, or rate of rent fixed in perpetuity are entitled to any remission of rent on account of the landlord''s failure to maintain the irrigation arrangements in proper order. It has been urged for the appellants that the rent of the holdings being fixed in perpetuity remission of rent, in the absence of any term to such effect in the contract which created the tenancies is not permissible in law, and that Clause (c) of Section 112A(1), Ben. Ten. Act, which provides for remission of rent in such circumstance applies only to occupancy holdings and, therefore, the defendants cannot claim benefit of the said provision. In support of this contention reference is made to the decision of a Special Bench of this Court in Dukha Lal Chaudhry v. Mt. Manabati AIR 1936 Pat. 341. In that case it was held that:

Where the rights and the liabilities of the parties are regulated by contract, the terms of which could not be said to have been unfair at the date when the contract was entered into, the principle of natural justice cannot be invoked to relieve one of the parties of some hardship, which might have been provided against in the contract but which the parties have omitted to provide for. Therefore, there is no justification for extending the principles underlying Section 38, Ben. Ten. Act, 1885, to a tenant holding under Istemrari mokarrari lease.

The learned Subordinate Judge in allowing partial remission of rent for the years in suit appears to have followed the decision of a Division Bench of this Court in Sir Ganesh Dutta Singh v. Somar Mahto in Second Appeal No. 488 of 1941. The learned advocate for the appellants submitted that the decision of the Division Bench is in conflict with the decision of the Special Bench which ought to prevail. That case was also for recovery of arrear of rent by these very appellants against certain tenants of the same mouza. The rent of the holdings in the suits giving rise to those appeals was also fixed in perpetuity. The learned Subordinate Judge who heard those appeals construed the terms embodied in the kabuliyat with reference to the irrigation record of rights (Fard Abpashi) and came to the conclusion that there was an implied term in the contract of the tenancy of those tenants that the realisation of rent is subject to the maintenance of the irrigation works by the landlord and as that had not been done, the tenants were held entitled to abatement of rent. Their Lordships of the Division Bench accepting the finding of the Court below held the tenants entitled to the remission of rent as granted by the Subordinate Judge.

It is clear that in that case remission was allowed on the ground that it was permissible under the terms of the contract which created the tenancy. Therefore, the decision of the Division Bench does not seem to me to be in any way at variance with the principle of law enunciated by the Special Bench in the case referred to above.

In the present appeals the learned Subordinate Judge was of the opinion that the terms of the kabuliyat read with the Fard Abpashi clearly implied that the payment of rent was subject to the condition of maintenance of the irrigation arrangements in proper order by the landlord. Mr. Lakshmi Kant Jha disputes the correctness of the view of the terms of contract formed by the learned Subordinate Judge. Therefore, the terms of the contract as embodied in the kabuliyat executed by the defendants seem to require examination. Now it appears that in six out of the eight appeals the kabuliyats were executed in the year 1909 and in two of them in the year 1923. The kabuliyats of 1909 recite that owing to frequent differences about the rate of rent the parties agreed to settle the rent of the holdings at Rs. 8 per bigha in perpetuity. The recital itself shows that the kabuliyats did not create any new tenancy but merely fixed t the rent of the holdings that were already in possession of the raiyats on certain term of rate. The evidence is that those tenants held their respective holdings as Bhaoli. The learned advocate for the appellants also admitted it to be so. Therefore, the kabuliyats merely commuted the bhaoli rent to nakdi rent fixed in perpetuity. In other two cases fresh bakasht lands of the malik were settled by the kabuliyat on payment of nazrana at rents fixed in perpetuity specified in the kabuliyats. The irrigation record of rights of the mouza which was published in the year 1919 provides that in case of complete arrangement of irrigation the tenant will be liable to pay the existing rent. This document further shows that there is no natural source of supply of water to the mouza. The irrigation of lands depends on khatas and ahras constructed and maintained by the maliks. The Fard Abpashi shows that there are elaborate irrigation arrangements for the mouza. It is, therefore, clear that the maintenance of ahras and khatas as also other minor arrangements of irrigation is absolutely necessary for proper cultivation of lands of the mouza.

The learned Subordinate Judge was of the view that the statement in the Fard Abpashi that on maintenance of complete irrigation arrangements the tenants are liable to pay rent,, recorded a customary right of tenants holding lands in that mouza. I am inclined to agree with this view. The terms embodied in the kabuliyat may, therefore, be reasonably construed with reference to the recognised custom of tenancy in the mouza. The principle of law is:

If there be an invariable, certain and general usage or custom of any particular trade or place, the law will imply on the part of one who contracts or employs another to contract for him upon a matter to which such usage or custom has reference, a promise for the benefit of the other party in conformity with such usage or custom; provided there be no express stipulation between them which is inconsistent with such usage. To be binding, however, such usage must be uniform and universal, but when such invariable usage is proved, it is to be considered as the basis of the contract between the parties, and their respective rights and liabilities are held to be precisely the same as if, without any usage, they had entered into a special agreement to the like effect." (Chitty''s Treatise on the Law of Contracts, 9th Edn., 1937, page 46).

Here the said custom of tenancy in the mouza is clearly established by the entry in the survey record of rights. There is no evidence to the effect that the custom applies to a particular class of tenancy and not to the tenancy in the mouza as a whole. Therefore, the terms of the contract between the parities as embodied in the kabuliyat must be construed on the basis of that well-established custom. In that view of the matter, it cannot reasonably be contended that tenants holding lands at rents fixed in perpetuity are not entitled to the benefit of the customary right of tenants holding lands in the mouza. There is, however, a term in the kabuliyat that the tenant shall pay rent according to instalments, as fixed, year by year, without raising any objection as to inundation, drought and destruction caused by worms and hail-storms, earthly and heavenly calamities. It may be argued that this express stipulation is inconsistent with the customary rights as recorded in the Fard Abpashi, and, therefore, the defendants must be taken to have contracted themselves out of the said right. But each of the kabuliyats whether of 1909 or of 1923 also contains the following terms:

Wo hukum gowam pain bandh ka malikan ko dia karenge...basurat khelaf uske jawabdehi wo Itharcha taaluk manmokir ke hai wo hoga...wo kharcha...mitti wo gilandazi wo ghaira, taaluk ahle mashan ka hai wo hoga. (And I shall carry out orders for the supply of village labour for pain and embankments to the maliks, in default I shall be responsible therefore and shall be liable to pay costs. Expenses relating to earth work and gilandazi are and shall remain the concern of the proprietors).

The principle of law is:

Where words of recital or reference manifest a clear intention that the parties should do certain acts, the Courts will from these infer an agreement by them to do such acts (Chitty''s Book referred above, page 48).

The terms just quoted give clear indication of the intention of the parties that the landlord shall maintain the irrigation arrangements in proper order. The aforesaid two stipulations in the kabuliyat must be considered together in order to determine the intentions of the contracting parties. It is a well-established principle that the document must be construed as a whole and every word used must receive due weight according to its plain common meaning. Seemingly inconsistent terms in an instrument of agreement should be interpreted to bear a reasonable meaning of the transaction as a whole consistent with common sense and ordinary conduct of human affairs. In my opinion the stipulations in the later part of the instrument definitely control the stipulations in the earlier part of the document, as stated above. If it were the intention of the parties that the defendants were to pay the rent fixed without any objection of the nature as stated in the early part of the document, then it was quite unnecessary to provide in the deed regarding the landlord''s obligation to maintain the irrigation arrangements and the defendants'' liability to supply labour for the repair of pains and bandhs. For these reasons the intentions of the parties appear to me to be quite manifest that the payment of rent, without any objection of the nature as provided in the early part of the deed was subject to the maintenance of irrigation arrangements by the landlord for the benefit of the entire tenantry of the mouza irrespective of any distinction as to the term of the rent. It has been found above that the landlord neglected the gilandazi in the years in suit. The lower Court has accepted the: defendants'' evidence to the effect that the produce of the lands was affected in consequence of the said failure on the part of the landlord. The landlord having failed to act up to the terms of the contract, the tenants are entitled to such relief in regard to payment of rent as may be deemed suitable and just by the Court in the circumstances of the case. The appellate Court granted remission of rent by 25 per cent, for the years in suit. The estimate of the relief granted by the Court below seems fair and reasonable in the circumstances of the case.

Mr. Raj Kishore Prasad advocate for the respondents, submitted that the defendants are entitled to remission of rent also under Clause (c) of Section 112A(1) as they are occupancy tenants of the holdings in question although the rents are fixed in perpetuity. His argument is that in six cases relating to the kabuliyats of the year 1909 the tenants were already occupancy raiyats of the holdings atbhaoli rent and the kabuliyats merely commuted the bhaoli rent to nakdi rent in perpetuity. Therefore, mere commutation of rent, though at a rate fixed in perpetuity, cannot operate to deprive those tenants of their occupancy rights in the, holdings which existed at the time of the execution of the kabuliyats. As to the other two oases of new settlement by the kabuliyats of 1923 he submitted that the tenants were settled raiyats of the mouza at the time and, therefore, by. the operation of Section 21, Bengal Tenancy Act, they became occupancy raiyats of the lands newly settled with them. In support of this contention the learned advocate relied upon the following cases: Lakhi Charan Saha v. Hamid Ali AIR 1918 Cal. 426, Sarbeswar Patro v. Bijay Chand AIR 1922 Cal. 287 and Tarini Charan Sardar and Others Vs. Srish Chandra Pal, .

These cases related to the question whether a raiyat holding land at a fixed rate of rent is protected under Clause (4) of the provision of Section 37 of Act 11 [XI] of 1859 or u/s 160, Bengal Tenancy Act, as the case may be. In those cases it was held that a tenant at rent fixed in perpetuity may attain the status of an occupancy raiyat by the operation of Section 20 or Section 21, Bengal Tenancy Act, and would then be entitled to the benefit of protection under the aforesaid provisions. But there appears to be conflict of judicial opinions on the point in the Calcutta High Court itself. In Bhutnath Naskar v. Surendra Nath Dutt (09) 2 I.C. 675 his Lordship Mookerjee J. held that a raiyat holding at fixed rate does not after he has been in occupation for twelve years become a settled raiyat of the village and thus acquire a right, of occupancy. Similar view was expressed by their Lordships Woodroffe and Newbold JJ. in Akhil Chandra Sen v. Tripura Charan reported in AIR 1916 Cal. 101 referred in Sarbeswar Patro v. Bijay Chand AIR 1922 Cal. 287. Thus, in the Bengal Presidency itself, the question as to a tenant at rent fixed in perpetuity acquiring occupancy right in the holding cannot be regarded to be settled yet. For the purpose of decision of these appeals it does not seem necessary to enter into an examination of the debatable point raised by Mr. Baj Kishore Prasad. The view that I have taken of the terms of contract between the parties as embodied in the kabuliyats seems to me to be quite sufficient for the decision of these appeals. In the circumstances discussed the appeals must fail. I would dismiss the appeals with costs.

Fazl Ali, C.J.

The difficult question raised in these appeals is whether a raiyat holding his land at a fixed rate of rent can claim remission of the rent on the ground that the landlord has neglected to maintain the irrigation arrangements. Ordinarily, once the rents are fixed, no remission can be allowed. It appears that in a previous suit between the present plaintiff, and some of the tenants of the village in which the defendants hold lands it was held that by reason of the special usage recorded in the fard-abpashi such a tenant is entitled to remission. My first inclination was that these appeals should be referred to a Full Bench for an authoritative pronouncement on the question raised in them, but after reading the judgment of my learned brother, I am not prepared to express dissent from the view expressed by him and I agree that these appeals should be dismissed with costs. But I must state that I am not altogether happy about the finding of fact arrived at by the lower appellate Court with regard to the alleged neglect of the plaintiffs in maintaining the irrigation arrangements.

It, is very easy for the defendants in a rent suit to assert that they are not liable to pay the full rent because the landlord has shown neglect in gilandazi; but the Courts should not accept such allegations specially when they are of a vague and general character in the absence of clear and cogent evidence as to the landlord''s failure to discharge his obligation in regard to irrigation. In the present case the Munsif had dealt with the tenant''s plea at some length and come to the conclusion that the gilandazi arrangements were adequate. In a case like this the Courts should try to find whether the arrangements are reasonably adequate or whether the landlords have been so remiss in their duty that the productivity of the tenants'' land in the years in suit has been materially affected. The appellate Court has reversed the decision of the Munsif, but as his decision amounts to a finding of fact, I cannot say in second appeal that the Munsif''s conclusions ought to be preferred.

The appeals must, therefore, be dismissed, but I think that in any suit that may be brought for these lands in future the Courts should deal with the matter more carefully.