Gobind Raut vs Chaudhuri Thakur Prasad and another

Jwala Prasad, J.—This appeal arises out of a suit for rent. The Munsif had dismissed the suit accepting the contentions of the defendant that (1) the rent payable was nakdi at the rate of Rs. 3-5-6 for each bigha of paddy and 4 annas for each bigha of Moong, and not produce rent as claimed by the plaintiffs in the years when crops are produced; and (2) no crop was produced in the year 1323-24, but only in the years 1325 and 1326 and the rent for those years was paid.

On appeal by the plaintiffs, the learned District Judge agreed with the Munsif that the crops were grown only in the years 1325 and 1326, but he disagreed with him as to the rate of rent and as to the rent having been paid. He held that every year the land which actually grows crop is measured and for every bigha, 3 maunds 10 seers 1 1/2 kanwas is paid to the Malik for Dhan and 4 annas for Moong. Accordingly, be decreed the appeal and the plaintiffs'' claim for rent for the years 1325 and 1326 with proportionate costs to each party in both the Courts. The defendant is aggrieved by the decision of the learned District Judge and has come to us in second appeal. He disputes the findings of the Court below both as to the rate of rent payable by him for the lands in suit and as to his please of payment having been rejected. I do not think, it is open to us to dispute the finding of the Court below on the question of payment. This is a finding of fact and has been arrived at on an appreciation of the evidence in the case. It has not been shown that the Court below has contravened any provision of law or procedure in arriving at the finding that the defendant failed to substantiate the plea of payment. It may, however, be mentioned that the two receipts (Exhibits A and A-1) relied upon by the defendant in proof of his payment have not been properly proved. They were filed after the close of the plaintiffs'' case and during the cross-examination of the defendant. He did not mention them in his examination-in-chief and when his oral testimony as to the payment of rent was challenged in cross-examination he suddenly produced these two receipts. He admitted that the receipts were brought for the first time. They purport to have been granted by the plaintiffs'' Patwari, Nenalal Das, who was examined as witness No. 1 for the plaintiffs. The receipts were not shown to him. Therefore no opportunity was given to the plaintiffs to rebut them. The Munsif accepted these receipts only upon the ground that they bore striking similarity to the Khisras written by the Patwari. I myself have looked into the writing with the help of a magnifying glass, but do not find any similarity. Besides, similarity in itself is not a sufficient proof. The Patwari as observed above, was in the box and the receipts should have been shown to him. Anyhow the Court below has held that the receipts are suspicious and has rejected the evidence of the defendant on the plea of payment. The finding is conclusive and cannot be reopened in second appeal The learned Vakil on behalf of the defendant ultimately conceded that he did not want to press the plea of payment and to question the finding of the District Judge.

The contention of the learned Vakil on behalf of the defendant as to the finding of the Court below with respect to the rate of rent payable by the defendant seems to be substantial. The determination of the question as to the rate of rent depends entirely upon the construction of the entry in the record-of-rights. The Courts below have differed as to the true construction to be placed upon the entry in question. The Munsif says that the entry means a naqdi rent at the rate of Rs. 3-5-6 for paddy and 4 annas for Moong par year, for every bigha of the land which actually grows crop in the year.

The learned District Judge, on the other hand, interprets the entry to mean that the rent is payable at the rate of 3 maunds 10 seer 1 1/2 Kanwas for Dhan and 10 seers for Moong per year for every bigha of the land which actually grows crop in the year. The difference between the two Courts below is as to what the figures about the rent mentioned in the Khatian indicate : whether'' they read as maunds, seen and kanwas or as rupees, annas and pies. The entry is as follows :-

"Every year the land which actually grows crop is measured. (The tenant) pays (to the Malik) Rs. 3-5-6 Dhan and 4 annas Moong. Laggi 9 feet 9 in.-" The amount of rent entered in column 10 is "what was paid in the previous year." [N. B.-The words within the brackets. (The tenant) and (to the Malik) are mine.] The original Khatian had the words "Deta hai" (pays) which I have retained in place of the words "Diya Jata Hai" (is paid) in the certified copy.

These are, however, immaterial. The question is-what do the figures in the aforesaid entry, namely, Rs. 3-5-6 and 4 annas indicate. Obviously they mean Rs. 3-5-6 and 4 annas respectively. Maunds, seers and Kanwas would be written as (?) and 15 meaning 3 maunds 10 seers and 1 1/2 Kanwas and 10 seers respectively: vide page 27 of Desi Bisab, Pahila Bhag, by Ram Lochan Sharan. This note of writing is prevalent in this part of the country. The learned District Judge however, thinks that the aforesaid figures might either indicate maunds, seers and Kanwas or rupees, annas and pies; but he prefers to read them as indicating the latter on account of the words "Dhan" and "Moong" having been affixed to the respective figures. The words "Dhan and Moong" were, however, affixed to indicate that the rate of rent will be so much per bigha in respect of the Dhan and Moong growing lands respectively; in other words, the entry means that the rent payable was at the rate of Rs. 3-5-6 per bigha of land grown with Dhan and 4 annas per bigha of the land grown with Moong. The actual quantity of land grown with Dhan and Moong was to be ascertained by measurement every year. This interpretation is corroborated by the fact that in accordance with the concluding words of the entry referred to above, each rent has been shown in column 10 of the Khatian as the rent paid for the year previous to the one in which the entry was made, and not in maunds or seers which would have been if the aforesaid figures meant to indicate the rent payable in kind. Further, cash rents have been written in the same way in column 10 as the figure in question in the disputed entry. Had the rent been payable in kind the word "bhaoli or batai" "Kankut" or other local word in use would have been entered in accordance with rule 278, page 88 of the Bengal Survey Manual [1908] There is no such word in question and therefore the entry means cash rent and the figures indicate rupees, annas and pies which ordinarily they would read like The tenancy in question is "Jaidadi tenancy" specially found in the Bahera Thana in the District of Darbhanga where the lands in question are situate. A reference has been made to the District Gazetteer of Darbhanga, volume VI, page 123 [1907.]

It shows that in jaidadi tenancies, such as the present one "on account of the marshy condition of the lands, a crop can only be grown in an exceptionally dry year and the cultivators of such lands pay rent only in the year in which a crop is grown and only for such areas as produce a crop. These areas are measured at the time of harvest and pay either a cash rent previously agreed upon or a produce rent." The learned District Judge very rightly holds that the remarks in the District Gazetteer do not help in the interpretation of the entry in question, for rents of such tenures are sometimes paid in cash and sometimes in produce. The plaintiffs have not produced their collection papers of the village to show that they had ever realised rents in kind, and not in cash from the defendant in the suit or from any other tenant in the locality although the entries with respect to all of them are similar, and the record-of-rights was finally published on the 31st of January 1902. This omission on their part raises a presumption against the plaintiffs realising produce rent. The learned District Judge, to my mind, has misread the figures in the survey entry as indicating bhaoli rent payable for the lands in question. His finding therefore is illegal and is liable to be set aside, in second appeal. I accordingly set aside his finding and hold that the rent payable is in cash as indicated above, namely, at the rate of Rs. 3-5-6 for Dhan and 4 annas for Moong for every bigha. of land which actually grows crop.

I accept the finding of the learned District Judge that the crops were grown on two bighas of land in the years 1325 and 1326, as admitted by the defendant. The defendant''s plea of payment having failed, he is liable to pay naqdi rent at the above rate for the crops grown in 1325 and 1326 as admitted by the defendant himself. We are not at all concerned with the quantity of crop but are only concerned with the quantity of land on which crops were grown, that is, two bighas.

The decree of the Court below is accordingly modified and, the appeal is partially decreed, with proportionate costs to each party in all the Courts, with interest at six per cent per annum.