Kharra Majhi vs Abinash Chandra Chakravartti

Scroope, J.—The suit out of which this appeal arises is one of a batch of eight suits for recovery of rent and cesses for the years 1331 to 1334 in respect of holdings in Mauza Muldih. In the present suit No. 483 of the Munsif''s Court, an annual rent of Rs. 24 exclusive of cess was claimed, but the case for the two tenant defendants who are brothers was that they with the defendants in Suits Nos.484, 485 and 487-89 jointly held two tenancies under the plaintiff bearing khata Nos. 5 and 6, the annual rent of the former being Rs. 4 and of the latter Rs. 10 plus cess of 7 and 5 annas respectively.

They alleged that the plaintiff had wrongly sued them for rent by splitting up those two holdings into a number of different holdings and apportioning them amongst the different members of the family. The plaintiff produced in support of his case previous decrees; but the first Court hold against him as the total amount of rent demanded in the different suits Nos. 483-485 and 487-489, was Rs. 63-10-0 which was much in excess of the rent recorded in the khatians for the two khatas, and as Section 94, Chota Nagpur Tenancy Act, provides that no demand for rent in respect of an occupancy holding in excess of the amount entered in the Record of Rights shall be enforceable except in circumstances which admittedly do not apply here; the learned Munsif accordingly dismissed the suit out of which this appeal arises along with the suits the numbers of which I have given above because, as I say, the total rent claimed in them was in excess of the rent recorded in the khatians as payable for the two holdings in possession of the defendants.

On appeal to the Judicial Commissioner he held that Section 94 did not override Section 84 which only gives a presumptive value to the Record of Rights and that the presumption had been rebutted by the previous decrees. He therefore allowed the appeal of the landlord and decreed the suit for the amounts claimed. For the view he has taken of Section 94, Chota Nagpur Tenancy Act, he relies on an unreported decision of a single Judge of this Court: Janardan Kishore Lal Singh Deo v. Kali Pada Tewari Second Appeal No. 622 of 1925, the relevant portion of which runs as follows:

Section 94, after providing that when the rent of an occupancy holding has been entered in the Record of Rights the rent shall not be enhanced or reduced for the period therein stated except on specified grounds, enacts that no demand for rent in respect of an occupancy holding in excess of the amount entered in the said Record of Rights shall be enforcible save as provided in this chapter or in Section 32, etc. Now, that makes the Record of Rights the criterion of the rate of rent; but the authority of the Record of Rights itself is defined in Section 84 in that chapter in this way; that every entry in a Record of Rights so published shall he evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved by evidence to be incorrect. This rate of rent in the Record of Rights can have no higher authority than the record itself. It is not irrebuttable, but may be rebutted by ovidence. Where there are decrees of a civil Court it is clearly rebutted, because the matter is res judicata and it is not competent to the settlement officer to overrule the decision of the civil Court.

With very great respect I am entirely unable to agree with the view of the law taken here. The learned advocate for the respondent, in support of this interpretation, draws my attention to Section 113, (1), Ben. Ten. Act, but that section only provides the period for which rents settled under Ch. 10, Ben. Ten. Act, are to remain unaltered: whereas Section 94, Chota Nagpur Tenancy Act, applies to rents entered in the Record of Rights irrespective of the question whether there has been a settlement of rent or not; in fact irrespective of how the rental has been fixed. If the interpretation of the section be in accordance with that adopted in the decision cited above and relied on by the learned Judicial Commissioner then this provision in Section 94 becomes entirely meaningless as the learned Munsif has pointed out.

In my opinion the view adopted by the learned Munsif was entirely correct. There is no hardship either in this interpretation; the landlord can ask for settlement of fair rent u/s 85; he can apply u/s 87, for correction of the entry; he can also apply to the revenue officer for revision u/s 89. This provision in Section 94 is designed to prevent parties, who have not availed themselves of the opportunity provided by the Act for revision of rents from reopening the question in an ordinary rent suit and is based upon the special conditions of Chota Nagpur. There is another reason also why the suit must fail; it has not been shown by the plaintiff that the previous decrees (Exs. 6 and 6-a) related to the lands now in suit. The land subject of the previous decree (Ex. 6) which is dated 20th October 1911, is described as follows:

Schedule of Land:

One plot below Majhi bundh:

East--Plaintiff''s khas danga (high land). West--Border of ar (embankment) of Majhi bundh in the khas possession of the plaintiff. North--Border of the bari in the khas possession of the plaintiff. South--Border of laud below Majhi bundh in the khas possession of the plaintiff.

In Ex. 6-a the decree, dated 17th December 1923, the description is simply, "one plot below Majhi bundh" (sic). In this area a Record of Rights had been finally published--the exact date of final publication does not appear--but evidently it was after 1923 and before the institution of the present suit.

In the present set of rent suits which plaintiff filed in 1928 he gave no description of the land at all as he was required to do by Section 144, Chota Nagpur Tenancy Act, which further requires that where a Record of Rights has been finally published the plaint shall contain a list of the survey plots comprising the tenancy, a statement of the rent of the tenancy according to the Record of Rights and a copy of entries in the Record of Rights regarding the subject-matter of the suit; later on however, he amended his plaint and supplied for the rent suit out of which this appeal arises plot Nos. 231-242; he thus complied with the first requisite of Section 144, but not with the other two; but above all he made no attempt to prove that the plot numbers specified corresponded with the land covered by the previous decree and it was incumbent on him to do this as defendants had taken objection regarding the specification of the holdings in their written statement. What the plaintiff has done is, in order to effect a nominal compliance with Section 144, to take a certain number of plots out of the defendants'' joint khata and distribute them at random over the different suits; for no attempt at all has been made to prove any identity; this is the second reason for which the suit must fail; and the third reason is that a statement of rent of the tenancy according to the Record of Rights has not been supplied.

It was argued for the respondents that this appeal was barred by res judicata and the contention seems to be this: in the other seven suits the appeal lay to the Deputy Commissioner who decreed them all following the unreported judgment referred to above; but the present appeal lay to the Judicial Commissioner as the amount sued exceeded Rs. 100. The argument is that the question whether the plaintiffs are entitled to realize rent on the basis of their previous decree or according to the Record of Rights has been finally decided by the Deputy Commissioner in favour of the plaintiffs in those appeals and is therefore res judicata now. There is no substance in this. The holding in the present suit is quite a different holding according to the plaintiff''s case from the holdings in the other suits and in each one of those suits different holdings are involved; and the plaintiffs'' plea was supported by different decrees in each case; so obviously no question of res judicata arises, the subject-matter of dispute being different in each case.

For these reasons this appeal must succeed. The decision of the learned Judicial Commissioner is set aside and the plaintiffs'' suit dismissed with costs throughout.