Fakir Mohammad vs Sakina and Another

Macpherson, J.—This second appeal is preferred by Fakir Muhammad, who is the second of the three defendants in a suit instituted by the plaintiff-respondent in the Court of the Munsif of Jamui claiming rent for the years 1329 to 1332 1 with damages thereon on the basis of a kabuliyat. Rs. 1 dated 17th May 1921, under which the defendants jointly took settlement from the plaintiff at a rental of Rs. 272 per annum of an area of 29 bighas approximately in village Alapur and 07 acre of land bearing khasra No. 373 of Karimpur Kamasi.

The appellant who alone contested the suit raised various defences claiming that he himself was the owner of the land having taken it by Ex. B (the deed of settlement with the plaintiff dated 1st July 1920) at a jama of Rs. 44-4-0 through the husband of the plaintiff who fraudulently got her name entered in the deed impugning the validity of the kabuliyat and contending that in any case u/s 48, Ben. Ten. Act, the plaintiff is precluded from recovering rent at more than Rs. 66-6-0 per annum, that he (appellant) was not in possession of all the lands specified in the kabuliyat and that the Munsif of Jamui had no jurisdiction to try the suit.

The only one of the defences which the learned Munsif did not negative was that, which related to the area of which the appellant was in possession. He held on the report of a commissioner that the contesting defendant was in possession of only 27 bighas in Alapur. He decreed the suit for a rental which bear3 the same proportion to Rs. 272 per annum as 27 bighas bears to the area demised in Ex. B. An appeal by the contesting defendant was dismissed by the Subordinate Judge.

In second appeal the only questions raised by Mr. Section N. Bose are two which were negatived by the lower appellate Court in a sentence, (1) that u/s 48, Ben. Ten. Act, the highest sum which can be decreed is Rs. 66-6-0 per annum, and (2) that the Munsif of Jamui had no jurisdiction to try the suit and the objection to jurisdiction was taken at the earliest possible opportunity.

As to the first point, the lower appellate Court has disposed of it by a reference to the decision in Nim Chand Shaha v. Joy Chandra Nath [1912] 39 Cal. 839 on the ground that the land demised by the kabuliyat is not co-extensive with the land held by the plaintiff under the patta Ex. B. where the demise includes besides the same area in Alapur, four dhurs of land daune Koh, that is, at the base of the hills in plot 212 of mauza Sheikhpura which was not settled with the defendants by Ex. 1. It may be noted in passing that it has been found as a fact that the four dhurs in Sheikhpura and the four dhurs in Kamasi do as a matter of facts exist and that the registration of Ex. B and 1 respectively was valid. Mr. Section N. Bose has criticized the decision in Nim Chand Saha v. Joy Chandra Nath [1912] 39 Cal. 839 and not without force. It certainly is subject to many qualifications, for instance, where it can be definitely shown that the holding is not held at a consolidated rent for the whole holding, but that each plot or each class of land is held at a known rent or known rate of rents and the rental is simply an aggregation of the rents of plots (a ease more common before 1885 than after that date and especially after the publication of a Record-of-Rights) and especially is the circumstances found in cases such as Natibulla Ahanda v. Badi Bepari [1917] 42 I.C. 243, with which I respectfully concur. As in that case Mr. Bose does not here raise the question whether on a strict application of Section 48 a lesser rent might not be arrived at than 150 per cent of the rent set out in Ex. B, he is content to assume that the area covered by Ex. 1 is:

the only profit yielding part of the holding covered by Ex. B to take the whole of the annual rent payable by the raiyat.

As regards the decision in Akram Ali v. Anwar Ali [1914] 24 I.C. 677. it is pointed out that the portion sublet "a very small fraction of the holding" and the Judges stated: "on the materials on record it is impossible to distribute the rent payable by the plaintiffs on the land in suit." implying that the course adopted in Natibulla Akanda v. Badi Bepari [1917] 42 I.C. 243. would not have been of advantage to the under raiyat who was the appellant before the Court.

On behalf of the landlord respondent Mr. Khursaid Husnain supports the decree of the lower appellate Court, relying on the decision in Nim Chand Shaha v. Joy Chandra Nath [1912] 39 Cal. 839 on the basis that the demise in Ex. B is A plus X and in Ex. 1 is A plus Y, so that the tenancies cannot be co-extensive. Though X and Y exist and are part of, the consideration in each case each is entered for a purpose unrelated to, the substantial contract between the parties and each is infinitesimal in value and its effect upon the financial arrangement was and was intended to be nil. Except nominally the tenancy in Ex. 1 is coextensive with the tenancy in Ex. B, and if appellant is an under-raiyat Section. 48 is not inapplicable and the maximum annual rent which plaintiff can recover from appellant is Rs. 66 6-0.

Mr. Khurshaid Husnain however advances the further contentions that Section 48 does not apply (1) as the plaintiff is not a raiyat but a tenure holder and therefore appellant is a raiyat and not an under-raiyat, and (2) as plaintiff is a raiyat in fixed rates.

The second argument is supported by reference to the judgment of Cuming, J., in Raj Kumar Dutta Gupta Vs. Ramani Mohan Kunda and Another, . and it is urged that Section 48, Ben. Ten. Act is controlled by Section 18 so that if a raiyat at a fixed reat leases his holding the lessee will not he an under-raiyat, within the purview of Section 48. In the case cited Cammiade, J. took the opposite in view. To my mind the argument has Inothing to commend it. If the plaintiff is a raiyat, and the appellant holds under |plaintiff the whole or a part of the holding of the plaintiff settled with appellant for the purpose of cultivating it, then under the definition appellant is an under-raiyat, plaintiff is the landlord of appellant the under-raiyat, and Section 48 applies, the point whether appellant holds at a fixed rent or at a variable rent being entirely immaterial save unless conceivably in exceptional circumstances which do not exist here.

The first plea is, however, well-founded and must prevail. We have before us an official translation made of Ex. B from

which it is manifest that a raiyati settlement is not made therein. The lands in Alapur were bakasht of the executants. There was a premium of Rs. 2,890-6 0 and the annual payment of Rs. 44-4-0 is termed haqajiri inclusive of cesses:

so that there may be no difficulty in paying the Government demand.

The tenancy is called permanent mukarrari and the transferee is never alluded to as raiyat but as mukarridar. There is no statutory presumption from the area that the plaintiff is a raiyat, and there is no indication in. Ex. B, that the person acquiring the right to hold the land has done so for the purpose of cultivating it himself or by members of his family or by hired servants or with the aid of partners. On the contrary the indications are all against any acquisition for such a purpose as the transferee is a pardanashin lady living in a different village who promptly let out the whole area for seven years. In my opinion the plaintiff''s plea must be sustained however little she may eventually relish the consequences of her success. The plaintiff is not a raiyat but a tenure-holder and the appellant is a raiyat and not an under-raiyat. Section 48 therefore does not apply and the first contention in appeal fails.

Being content with the decision that he is not an. under-raiyat for the purposes of Section 48, Mr. S.N. Bose does not propose to press the appeal further. The lower appellate Court rejected the second plea on the ground that a portion of the land covered by the kabuliyat was within the jurisdiction of the Munsif. There is also nothing to show that the plaintiff, though in the absence of the kewala, which absence was explained, she had not satisfactorily proved her title to the land situated in the Jamui Munsiff, had not a bona fide claim to the land and also was not in possession. Appellant did not take actual possession because it was not worth while. It has not been shown that his lack of possession of part of the tenancy demised is due to caches on plaintiff''s part. The plea, if pressed, would have failed. In my opinion this appeal fails and I would dismiss it with costs.

Dhavle, J.

I agree.