Jugal Kishore Sah vs Shambhu Nath Pande

Das, J.—These analogous appeals come before me from the judgment of the Judicial Commissioner of Manbhum and arise opt of suits brought by the respondent against the appellants for recovery of rent on the basis of Kabuliyats executed by the tenants in favour of the landlord. It appears that the entire Mouza in which these tenants hold land as occupancy tenants, was sold in execution of a rent decree obtained by the Zamindar against the Mokarraridar and was purchased by Mr. G.P. Cooks. Subsequently Mr. Cooke sold his interest to the plaintiff. The plaintiff''s case is that the result of the auction sale was to put an end to all the tenancies as encumbrances affecting the land and that he became entitled to evict the tenants, including the appellants before me, from the land but that he offered to enter into settlements with them on new terms and conditions, which offer was accepted by the tenants. He now brings his suit for recovery of rent on the basis of the Kabuliyats alleged to have been voluntarily executed by the tenants in favour of the plaintiff. The tenants contest this suit on two grounds. Firstly, they say that these Kabuliyats were procured from them by coercion and undue influence exercised on them by the plaintiff; secondly, they say that having regard to the provisions of sections 26 and 27 of the Chota Nagpur Tenancy Act the plaintiff is not entitled to receive rent at the rate stipulated in the Kabuliyats. The lower Appellate Court has come to a conclusion favourable to the plaintiff on both these points. The tenants appeal and on their behalf it has been argued before me that these Kabuliyats were in fact procured by coercion and undue influence and, therefore, they are not binding on the tenants. I do not propose to come to a definite finding on this point, because in my opinion the appellants are entitled to succeed on the next point urged on their behalf, namely, having regard to the provisions of sections 26 and 27 of the Chota Nagpur Tenancy Act the plaintiff is not entitled to recover rent at the stipulated rate. The provisions of sections 26 and 27 of the Chota Nagpur Tenancy Act are very definite and clear, but it has been argued before me by the learned Vakil appearing on behalf of the respondent that at the time when these Kabuliyats were executed by the tenants, the law was not perfectly clear, or at any rate doubtful on the question whether the purchaser of a tenure sold for non-payment of rent due to the superior landlord was not by virtue of section 16 of the Rent Recovery Act entitled to annul the occupancy tenancies on the land as encumbrances affecting the land. His point is that at any rate the position was not free from doubt and difficulty. He had a fair chance of establishing in a Court of law that he was entitled to evict the tenant; the tenants appreciated their own difficulty in the matter and voluntarily executed the Kabuliyats. He says that the arrangement amounted to a fresh settlement of land with his tenants. The argument is a subtle one, but in my opinion it does not deserve success. The question was debated in the case of Bama Charan Gosain Vs. Ram Kanai Dubey and Another, and it was there pointed out that from the days of 11 Weekly Reporter it has been consistently held that the occupancy tenants are by the express provision of section 16 protected from eviction. The only one case that has struck a different note is that of Jogeshwar Mazumdar v. Abed Mohamad Sirkar 3 C.W.N. 13, but that was a case decided under Regulation VIII of 1890 and not under Act of 1865. Having considered section 16 of Act VIII of 1865 myself, I agree with the learned Judges who decided the case of Bama Charan Gosain Vs. Ram Kanai Dubey and Another, that the occupancy tenants are so protected and that it has been so held certainly from 1-69. That being so, at the date of the Kabuliyats these tenants were undoubtedly occupancy Ryots and there was undoubtedly a subsisting relationship of landlord and tenant between the plaintiff and them. In my opinion the enhancement of rent could only be under the provisions of sections 26 and 27 of the Chota Nagpur Tenancy Act. The learned Judicial Commissioner relies upon the case of Bata Mandal and Another Vs. Maharaja Manindra Chandra Nandi Bahadur, for his conclusion that sections 26 and 27 of the Chota Nagpur Tenancy Act only apply where there is a real contract for enhancement, and not where there is a bona fide dispute between the parties. The case reported as Bata Mandal and Another Vs. Maharaja Manindra Chandra Nandi Bahadur, was decided with reference not to sections 26 and 27 of the Chota Nagpur Tenancy Act, but to section 29 of the Bengal Tenancy Act and it is to be noted that the learned Judges who decided that case did so very reluctantly and only because they thought they were compelled to do so having regard to the course of the decisions on the subject. So far as sections 26 and 27 of the Chota Nagpur Tenancy Act are concerned, we are not embarrassed by a course of decisions, and are at liberty to decide according to the plain meaning of the section. But apart from this consideration, there is in my opinion a difference in principle between section 29 of the Bengal Tenancy Act and sections 26 and 27 of the Chota Nagpur Tenancy Act. It is to be noted that the language of section 27 is very peremptory and, in my opinion, leaves no scope whatever for any agreement between the parties. It is expressed both in the positive and negative form. It says that the rent of an occupancy Ryot whose rent is liable to enhancement may be enhanced only by order of the Deputy Commissioner passed u/s 29 and then in order, as I understand, to emphasise the position, it declares in the negative form that no enhancement of such rent made after the commencement of this Act in any manner other than that referred to in clause (a) or clause (b), as the case may be, whether by private contract or otherwise, shall for any reason be recognized or given effect to in any suit or proceeding in any Court.

In my opinion the judgment of the learned Judicial Commissioner is erroneous and I would, therefore, allow all these appeals with costs here and in the Courts below.