Jagmohan Singh and Others vs Ramnandan Prasad Narayan Singh and Another

Harries, C.J.—This is a Letters Patent appeal from a decision of Wort J. in a second appeal. The suit out of which the appeal arises was brought by the plaintiffs for rent for the years 1343 and 1344 P. that is for the period from 13th September 1935 to 20th September 1937.

The rent was bhaoli rent, and the plaintiffs claimed 50 per cent, of the produce of land and 50 per cent, of the produce of certain fruit trees. The learned Munsif assessed the outturn of the land at 5 mds. per bigha and decreed the plaintiffs'' claim accordingly granting the plaintiffs also damages at the rate of 7 per cent. On appeal the lower appellate Court held that the outturn was 9 mds. per bigha and modified the decree accordingly, the other terms being left undisturbed. Prom the decree of the lower appellate Court, the defendants preferred a second appeal to this Court which was heard by Wort J. In that appeal it was urged that the lower Courts were wrong in giving the plaintiffs 50 per cent, of the produce. According to the defendants, the plaintiffs were not entitled to more than 9/20ths and further they were not entitled to interest at a rate higher than 6jth per cent. Wort J. rejected these contentions and dismissed the appeal, hence the present Letters Patent appeal.

With regard to the produce of the fruit trees, it is urged that by reason of amendments to the Bihar Tenancy Act which were made in 1938 the landlord was not entitled to more than 9/20ths of the produce; Wort J. observes that no point was taken with regard to the fruit trees in the memorandum of appeal and he did not allow the point to be raised. Further, it would appear that any amendment of the law with respect to the fruit trees did not come into force until this case had actually been decided by the learned Munsif. I see no reason to differ from the learned Judge with respect to the fruit trees. The main point argued in the case was that the lower Courts were wrong in giving the plaintiffs 50 per cent, of the produce, and reliance was placed on the present, Section 178B, Bihar Tenancy Act. Section MSB; was: introduced into the Act by Section 34 of Act 8 of 1937, which came into force on 10th March 1938. Section 178B is in these terms:

Nothing in any contract, express or implied, between a landlord and a raiyat made before or after the commencement of the Bihar Tenancy (Amendment) Act, 1937, shall entitle the landlord to more than nine-twentieths of the produce as rent in respect of an occupancy holding if rent is payable in kind by division of the produce.

It is to be observed that the present suit relates to a period, 13th September 1935 to 20th September 1937, that is a period before the present Section 178-B was enacted, further, it must be mentioned that the present suit was instituted on 30th September 1937, that is over six months before Section 178-B was introduced into the Act. The question, therefore, for consideration is whether the present Section 178B has any application to arrears which had accrued due before the section was enacted and which had been sued for in the Courts before the section came into force.

Clearly, the present Section 178B can have no application to the present case unless it is retrospective in its effect. New legislation cannot take away accrued rights unless such intention is manifest and clear from the terms of the legislation. The section must, therefore, be examined with a view to ascertaining whether it was the intention of the Legislature that it should have retrospective effect and should affect rights which had already accrued.

All that the section says is that nothing in any contract between a landlord and a raiyat, whether made before or after the commencement of the Bihar Tenancy (Amendment) Act, 1937, shall give the landlord a right to more than nine-twentieths of the produce as rent. In my view, this section cannot be construed as having a retrospective effect. It does not in any way prohibit the Court from decreeing a greater proportion of the produce in respect of rent accrued due before the passing of the Act. All that the section means is that after the passing of the Act a landlord shall not be entitled to more than nine-twentieths of the produce. There is nothing in the section to suggest that the landlord''s rights which had already accrued were to be affected in any way. That was the view taken by the learned single Judge, and in my judgment that is the correct view. Unless the plain words of the section compel a Court to hold that it has retrospective effect, no such effect will be given. In the present case, there is nothing in the wording of the section to suggest that it was ever intended to apply to rights which had accrued due before the section was enacted. That being so, the lower Courts ward right in allowing the plaintiffs 50 per cent. of the produce of the land.

It has also been urged that the lower Courts were wrong in allowing the plaintiffs seven per cent, as damages. In my view, on the facts of this case, the lower Courts should have allowed the plaintiffs � per cent, interest on the amount of the arrears in accordance with the provisions of Section 67, Bihar Tenancy Act, which was repealed by Act 8 of 1937 which came into force in the year 1938. When the present suit was instituted, the landlord had a statutory right to � per cent, interest on the arrears. That right has now been cut down by Section 67 of the present Act to 6 per cent. However, Section 67 of the present Act cannot be given retrospective effect for the same reasons as I have stated with regard to section 178B. There is nothing in Section 67 to suggest that it was intended to apply to rights accrued due before that section came into force.

In my view, as pointed out by the learned single Judge, the Courts below could have given in this case � per cent, interest on the arrears, whereas in fact they gave only seven per cent, which they described as damages. The defendants are, therefore, fortunate that a higher rate of interest was not given against them. For these reasons, I am satisfied that the learned single Judge was right in refusing to disturb the rate of interest granted in this case.

It was further urged that the lower appellate Court has based its finding on the outturn of this land upon an inadmissible judgment. This was a judgment in another suit relating to land in this village. A number of suits had been tried together and the defendants were parties in one of such suits. The learned single Judge points out that the defendants themselves relied to some extent upon this judgment, and in any event the defendants never objected that this judgment was inadmissible in evidence. That objection they took for the first time before the learned single Judge. Further, the learn-ed single Judge points out that there was other evidence before the lower appellate Court and that it was not open to the appellants to argue that there was no evidence to support the finding that the outturn was 9 mds. in the absence of a certificate to that effect.

As the point as to admissibility was never taken and as there was other evidence to support the finding, I see no reason to disturb the decisions of the. Courts below upon this ground.

Lastly, it was urged before us that the lower appellate Court should have allowed a set-off in respect of canal dues alleged to have been paid for the period in question by the defendants. No reference is made to this point in the judgment of the learned single Judge, and it appears clear that this point was not seriously urged. The lower appellate Court was not satisfied that anything had been paid by the defendants as canal dues for the period in suit, and that being so, he was not satisfied that they were entitled to set off any sum whatsoever against the arrears of rent. This is a pure question of fact, and the finding of the lower appellate Court cannot be disturbed either by a single Judge in second appeal or by a Bench in Letters Patent Appeal. No other point has been urged and for the reasons I have given I see no ground whatsoever for disturbing the decision of the learned single Judge.

I would, therefore, dismiss this Letters Patent Appeal with costs.

Fazl Ali J.

I agree.