Khemajit Mahton vs Naurangi Singh and Others

Wort, J.—This appeal raised a rather nice question which is one of some difficulty. The action out of which the appeal arises was for produce rent. The learned Judges have come to certain conclusions as regards the quantity of produce which in ordinary circumstances would clearly be decisions on facts and which this Court would have no jurisdiction to set aside in second appeal. However, having regard to the circumstances to which I shall in a moment refer, there does appear to be a somewhat difficulty question of law to decide. The difficulty arises not by reason of any inherent difficulty with regard to the law itself, but its application to this particular case. The point will be indicated if I state a few necessary facts.

The suit was for the years 1334, 1335 and 1336. It would appear that the defendants had set up a plea of what was described by the judgment of the Court below as a tender, and also that they had divided the crops. As regards the division there can be no question as from the finding of the Court below it is quite clear that there was no such division; but the lower appellate Court has decided that as regards the year 1335 there was what he describes as a tender. It was not a tender in the strict sense of the word, but it was a notice by the tenant to the landlord to come and appraise and divide the crops. For the reason that he has found that this notice was given in that year he has come to the conclusion that the amount of produce as stated by the defendants should be accepted, and he has decided accordingly.

So far as that year is concerned he has deliberately refrained from giving the plaintiff landlord damages. So-far as the year 133d is concerned as the decision which he has come to is a decision on the facts, the appeal is determined by that decision of the learned Judge in the Court below. We are concerned therefore only with the years 1334 and 1336.

It appears that the same defence which was set up as regards the year 1335 was put forward as regard these two years 1334 and 1336 but it was disbelieved. In those circumstances the question which comes to be determined is what is the proper construction of Section 71, Bengal Tenancy Act, as applied to this case.

If it had not been for Section 71, the decision of the learned Judge in the Court below would have been a decision on the facts and the case with regard to the years 1334 and 1336 would have been equally disposed of as was the case as regards the year 1335. But as the learned Judge in the Court below has held that there was no tender, that is to say no notice and the landlord did not receive his portion of the crops for the years 1334 and 1336, it must be assumed as stated by the plaintiff in his plaint that the defendants have appropriated the whole of the crops.

Now can we say that this was an appropriation with in the meaning of Section 71, Clause (4), Bengal Tenancy Act? Clause (4) provides:

If the tenant removes any portion of the produce at such a time or in such a manner as to prevent the due appraisement or division thereof at the proper time, the produce shall be deemed to have been as full as the fullest crop of the same description appraised in the neighbourhood.

It was suggested that Section 71 could not apply unless it was shown that the landlord had given notice to divide the crop and the tenant had refused, or that there was a definite finding on evidence entitling the Court to come to a finding that it had been removed at such a time or in such a manner as to prevent a division of the crop. It will be seen therefore that unless the contention of Mr. Khurshed Husnain on behalf of the appellant is accented, namely, that this must be deemed to be a removal preventing a proper division of the crop, the decision of the Court below becomes a question of fact which cannot be disturbed in second appeal.

It stands to reason from one point of view that if the crop is not divided and it is appropriated, no division can subsequently take place. But to repeat the question to which I referred a moment ago, that is to say is the simple removal of the crops sufficient to bring the case within Section 71 of the Act? The argument of the tenant is that the landlord must give notice to the tenant to divide the crops but this may be tested by referring to one of the sub-sections, Sub-section (2) which provides:

Where rent is taken by division of the produce, the tenant shall be entitled to the exclusive possession of the whole produce until it is divided.

It is quite clear therefore that until the crop is divided, the property is the property of the tenant. That being so the tenant is the person who is under the obligation, if there was an obligation at all, to give notice to the landlord that the crop was ready to be divided, and this is consonant with common sense of the case, the tenant being best able to know when the crop is ready to be divided, though I suppose as a matter of practice the landlord has his agents for the purpose of inspecting the crop from time to time for the purpose of ascertaining what he can expect in the way of rent.

If it is to be held that the tenant must give notice to the landlord that the crop is ready to be divided as he did in this case for the year 1335 then I think it would follow that if he removes the crop before giving such notice, that that removal would bring it within the mischief of 8. 71, Ben. Ten. Act. The whole difficulty in this case would have been avoided by a clear finding of the Court below in the matter, having regard to the fact that it was the case of the plaintiff in his plaint.

Now although the section uses the expression "at such a time or in such a manner," it seems to me, as I have already said, that assuming that the tenant is to give notice to the landlord, any removal before such notice is given makes it difficult if not impossible to make a proper division of the crop.

Unless the crop is either seen by the landlord immediately after it is cut and before it is appropriated and removed by the tenant, it seems to me impossible for there to be any proper division as between the landlord and the tenant. I come to the conclusion therefore in this case that the finding amounts to a removal of the crop by the tenant at such a time and in such a manner as to prevent a proper division.

I am somewhat late in stating the point which gave rise to this argument and discussion. The point was that the learned Judge in the Court below was wrong in stating that the report of the Commissioner for the year 1336 was no evidence of the crops of the preceding year. It has been held by this Court that a commissioner''s report for a definite year is some indication of what the land can yield. It is impossible to say that the report as regards one year can be specific and definite evidence of the crop of a preceding year or a future year, but it is some evidence, as I have stated, of what the land can yield. A report not dissimilar to the one made by the Commissioner in this case was used and held to he evidence in the case of Kishun Deyal Gape v. Ishwarnath Singh AIR 1927 Pat 16. It is true that one of the principal points in that case was the question of the admissibility of the document in question but there was also a similar question to that which arises in this case.

The learned Judge, in my opinion, was quite wrong in excluding that evidence but this Court would have been prevented from disturbing the judgment of the Court below by reason of Section 167, Evidence Act, as there was a body of evidence on the matter of quantity upon which the Court could come to a conclusion on that point, although the evidence was not to the same effect. But, having regard to my decision on the presumption which I have drawn in this case as to the removal of the crop, the case which otherwise would have been merely a question of fact becomes a question of law.

In other words if Section 71 Ben. Ten. Act, applies, the landlord is entitled to a ''full crop'', but the judgment in the Court below has given the plaintiff only that which is admitted by the defendant which cannot be described as a full crop.

In my judgment therefore the decision of the learned Subordinate Judge in the Court below as regards the years 1334 and 1336 was wrong and must be reversed. u/s 103, Civil P.C., the necessity of remanding the case to the Court below is obviated and I propose to hold that the plaintiff landlord is entitled to the crop represented by the Commissioner''s report.

I understand the Commissioners''s report is silent as regards the rabi and the kachi crop. In the circumstances of the case, I thin that the quantity allowed by the trial Court should be the quantity to which the plaintiff landlord is entitled, that is to say 5 maunds 25 seers of paddy that is according to the Commissioner''s report, 4 maunds of rabi and half a maund of kachi crop, the two latter being in accordance with the judgment of the trial Court.

The appeal so far as the year 1335 it concerned is dismissed. The appeal a regards the years 1334 and 1336 is allowed. There will be proportionate costs in this Court; the costs allowed in the Court below shall remain as they are I allow 12� per cent. damages to the plaintiff on the rabi crop according to the judgment of the trial Court. As there are a large number of cases of this kind with similar findings and not being free from difficulty, I think there should be leave to appeal.