Hemanta Kumar Mitter vs Anil Kumar Basu Chodhury

P.N. Mookerjee, J.—This is the Defendant''s appeal arising out of a suit u/s 104H of the Bengal Tenancy Act. The suit relates to a tenancy which was recorded in Khatian No. 938 of mouza Jalaberia in the district settlement record. It has now been recorded in Khatian No. 990 of the same mouza in the recent revisional settlement. The rent of this tenancy has been shown in the present record of rights as Rs. 167-8-0 per annum, in place of the original recorded rent of Rs. 43-12 per annum. The Plaintiffs, who are the present tenants in respect of the above tenancy, claim that, having regard to its present area, the rent of the aforesaid tenancy, according to the terms of the relevant Pattah (Ext. 1) of the year 1281 B.S. corresponding to 1874-75, would be, at the fixed rate of fourteen annas per bigha, as stipulated in the said pattah, the amount of Rs. 49-0-9 per annum, and they bring this suit u/s 104H of the Bengal Tenancy Act for a declaration that the rent of the jama in suit, as recorded in the present revisional Settlement Khatian, namely, at the rate of Rs. 167-8-0 per annum, is wrong and illegal and for taxation of the same at Rs. 49-0-9 p. per annum, as aforesaid, in terms of the above Pattah.

The suit is resisted by the Defendant, who is the present landlord in respect of the above tenancy. His defence is that the rent, settled by the Settlement Authorities, is not illegal or incorrect, and, in any event, it is not advisable by the court and, further, that the Pattah (Ext. 1) in question, or the terms thereof, are not binding on him, he being a bona fide transferee of the landlord''s interest for valuable consideration without notice of the said Pattah. The defence further is that the Plaintiffs'' claim of permanent tenancy at a fixed rate is not tenable in law.

Both the courts below have agreed in overruling the above defences and in decreeing the Plaintiffs'' suit. There can be no question that the suit has been filed within the shorter period of limitation, as contemplated by Section 104H of the Bengal Tenancy Act, and the suit can, in no view, be held to be time barred. But points have been raised by the Defendant Appellant as to the scope and applicability of Section 104H of the Bengal Tenancy Act and also of Section 191 thereof, on which and on the implication whereof reliance was placed by the two courts below, and of the maintainability of the present suit under the aforesaid Section 104H and in the above connection, Section 111A proviso of the above Act will also come in for some consideration.

Mr. Dutta appearing for the landlord Appellant, contends, in the first place, that the suit lands form part of a tenancy, evidenced by the Defendant''s Pattah (Ext. 1) which, on the. Plaintiffs'' own evidence and admission, comprise lands of two mouzas, mouza Rupnagar and mouza Jalaberia of which mouza Rupnagar on the Plaintiffs'' own evidence, again, as aforesaid, forms part of a permanently settled estate. In such circumstances argues Mr. Dutta the provisions or, rather, the implications, of Section 191 of the Bengal Tenancy Act, which might have otherwise precluded the Settlement Officer from ignoring or disregarding the Pattah (Ext. 1) in question, it being, admittedly of a date prior to the Bengal Tenancy Act, would not apply, although Section 104 and the other provisions, relating to settlement of rent in temporarily settled estates, would apply as on the admitted position, the settlement proceedings in question were in connection with the settlement of land revenue of inter alia the particular estate, to which the suit tenancy appertains. For this argument, Mr. Dutta relies on the terms of the said two sections and stresses the difference in their language. This particular point, however, that the suit lands form part of a tenancy, which comprises also lauds appertaining to a permanently settled estate, was not taken in the written statement and the further question that, because of that ground, Section 191 of the Bengal Tenancy Act or the implication, following there from, would not apply to this case, was also not raised in any of the two courts below. In the issues also and in the arguments, too, before the two courts below, not the slightest suggestion is to be found of any of the above arguments and, as a matter of fact, it appears clear that it was the defence, which relied on the said Section 191 in the two courts below, to support the recorded enhanced rental of Rs. 167-8 per annum.

In the above circumstances, it will not be safe to hold, on the mere statement of the Plaintiffs'' witness, that none of the mouzas to which the suit tenancy appertains, forms part of a permanently settled estate and to apply the law on that footing ever assuming that Mr. Dutta''s argument that Section 191 of the Bengal Tenancy Act would apply only to cases, where the entire tenancy appertains to a temporarily settled estate, is correct. I am not therefore, inclined to entertain the above objection of the Appellant at this stage in second appeal. I am also inclined to the view that the extreme argument of Mr. Dutta that, although Section 104 and the succeeding sections of Part II of Chapter X of the Bengal Tenancy Act would apply to this case on the ground that the land revenue of the estate to which the suit tenancy appertains is being or is about to be settled, Section 191 of the Act or, rather its implication in favour of pre-Act Pattah, would still be excluded, is not a correct construction of the said provisions of the above statute. Either because of consolidated rental or otherwise, the original tenancy cannot be split up by the Revenue Authorities for the purpose of applying Section 104 and the succeeding sections, as aforesaid, to the disputed tenancy, which is a component part thereof, and, in that case, Section 191 also would not obviously apply. (Vide in this connection, Maharaja Srish Chandra Nandi v. The Midnapore Zemindary Company Ltd. (1937) 67 C.L.J. 202) or, if the above splitting up be possible or permissible, not only Section 104 and the succeeding sections, as aforesaid, but Section 191 also would apply to the disputed tenancy, that being, on the above splitting up, a tenancy in a temporarily settled estate. Indeed, the very conception of the suit tenancy, which is the foundation of the impugned settlement record, or, rather, the impugned entry of rent therein, presupposes a splitting up as aforesaid, and the suit tenancy, therefore, cannot be regarded except as a tenancy in a temporarily settled estate. It seems to me, further, that Section 104 and Section 191 are complementary or supplementary provisions and they attract each other and both apply to tenancies in temporarily settled estates or to tenancies, capable of being treated as such as aforesaid, and the difference in language in the two sections in this respect is not of material significance but is merely one of form and not of substance.

Mr. Dutta then argues that Section 104H under which the present suit has been brought would have no application to the present case, as the ground of complaint here cannot be brought within any of the clauses of Section 104, Sub-section (3). This would be directly contrary to the decision of the Privy Council in Kumar Chandra Singh Dudhoria and Ors v. Midnapore Zemindary Company Ltd. (1941) 46 C.W.N. 802, 807, where at p. 807 their Lordships clearly recognised a suit of the present type as one u/s 104H of the Bengal Tenancy Act and refused to apply the proviso to Section 111A of the same Act to such a suit on that ground. Mr. Dutta''s argument would also be opposed to the decision of this Court in the case of Surja Kanta Jana and Anr. v. Sm. Nishu Bala Debi and Ors. (1946) 51 C.W.N. 376, and to some of the pertinent observations in the Province of Bengal v. Midnapore Zemindary Company Ltd. (1945) 49 C.W.N. 395. To me, also, it seems to be quite unacceptable as, in my view, the instant suit would come either under Clause (e) or Clause (g) of Section 104H (3) of the Bengal Tenancy Act. I am more inclined to treat it as a suit under Clause (g) of the said Section 104H(3), as, in my opinion, a stipulation about fixity or permanency of the rent or rate of rent would prima facie come within the expression "special conditions and incidents of the "tenancy", as used in the said Clause (g) but, even if that view militates in any manner or to any extent with the decision of this Court in the case of Kali Prasanna Maity and Anr. v. The Secretary of State for India in Council (1918) 23 C.W.N. 383, which held inter alia that the special incidents (and conditions) of the tenancy, mentioned in the aforesaid Clause (g) of Section 104H(3) refer to the special incidents (and conditions) mentioned in Section 102(h) and thus exclude-taking that to be the implication of the above decision, -the incident of fixity or permanency of rent, which may well come u/s 102(b), there can be no question that, on the same line of reasoning, Clause (b) of Section 102 would correspond to Clause (e) of Section 104H(3) and the latter would cover the present case. I may add further that Kali Prasanna''s case (5) is plainly distinguishable, as, there no question of special incidents (or conditions) of the tenancy arose, but the question was as to the rent payable which was held by their Lordships to be a general-as distinguished from special, incident of the tenancy and as falling within the plain words of Section 102(e). It is unnecessary to say anything more on the said case and, even applying it here, the only result would he that the present case would fall within Clause (e) of Section 104H(3) in the light of Clause (b) of Section 102, instead of Clause (g) of the said Section 104H(3). Clearly then, the instant suit would be maintainable u/s 104H of the Bengal Tenancy Act and Mr. Dutta''s argument to the contrary must be overruled.

Assuming further that Section 104H(3) would not apply to this case the instant suit would clearly come within the proviso to Section 111A of the Bengal Tenancy Act. The language of the proviso is wide enough to cover this suit and, as on the assumption, made above, it would be outside Section 104H(3), the above position would not be affected either by the Privy Council decision in Kumar Chandra Singh Dudhoria v. Midnapore Zemindary Company Ltd. (supra) or by the decision of this Court in the case of Surja Kant a J ana and Anr. v. Sm. Nisha Bala Debi and Ors. (supra).

It is to be noticed also that if, as indicated above in an earlier part of this judgment the Revenue Officer had no jurisdiction to split up the original tenancy and settle rent of the disputed tenancy forming one of the component parts thereof, separately tinder Section 104 of the Bengal Tenancy Act, his assumption of jurisdiction in this case was bad in law and it may well be a case of lack of jurisdiction or initial lack of jurisdiction, so as to attract at once the proviso to Section 111A of the Act in the light of Kumar Chandra''s case (supra) and Maharaj Sris Nandy''s case (supra), notwithstanding Surja Kanta Jana''s case (1946) 51 C.W.N. 376 (supra). If, on the other hand, the original tenancy could be split up, as was done by the Revenue Officer, for purposes of settling rent of the disputed tenancy u/s 104 of the Bengal Tenancy Act, the disputed tenancy would be a tenancy in a temporarily settled estate, as. already shown above, and Section 191 of the above Act and the implication thereof, referred to hereinbefore, would apply to it and forbid contravention of the Pattah (Ext. 1) which is a Pattah. prior to the Bengal Tenancy Act, and the Settlement Officer would be bound to give effect to it and, if he has not done so, the error will be rectified in this suit which would, as indicated earlier, be maintainable either u/s 104H(3), Clause (e) or Clause (g) or under the proviso to Section 111A of the aforesaid Act. We do not think also that there can be any legitimate objection to treat the present suit, if that be necessary, as a suit under the proviso to Section 111(A) of the Bengal Tenancy Act, if it be held that it does not. come within Section 104H of the said Act.

In any view of the case, then, the present suit would be maintainable and the parties'' rights must be taken to be governed by the Pattah in question, which, even according to Mr. Dutta and on a plain reading thereof,-would support the claim of the Plaintiffs-Respondents, that the maximum rent of the disputed tenancy would be at the rate of 14 annas per bigha per annum, lot, in other words, on the present state of the records, it would be Rs. 49-0-9 as claimed by the Plaintiffs in the plaint.

In no view, then, would the Appellant be entitled to any relief in this appeal and the appeal must fail.

I could accordingly, dismiss this appeal, though, in the circumstances of this case, I would direct the parties to bear their own costs in this Court.