Kuman Das vs Kachali Mandal and Another

Wort, J.—This appeal raises an interesting question under the Bengal Tenancy Act. The appellant before this Court brought two suits, being Nos. 1566 and 1567 of 1923 against Kuchali Mandal and Raju Mandal respectively before the Munsif of Purnea in which he claimed arrears of rent for the years 1327 to 1330. The Munsif dismissed the suits and on appeal to the learned District Judge he upheld the decision of the lower Court. It appears that the land, the subject-matter of these suits, was in joint possession of the two defendants from the year 1903 having entered into possession under a kabuliyat, dated 6th March of that year. They remained in possession under the terms of this kabuliyat from the year 1908 to 1910 after the expiration thereof, when the defendants appear to have separated. The defendant in Rent Suit No. 1566 of 1923 entered into a kabuliyat for a term of six years dated 20th May of that year. The defendant in Rent Suit No. 1567 of 1923 executed a kabuliyat for a term of five years dated 2nd March. One of the terms which was common to both these kabuliyats was that if the defendant continued in possession of the land after the expiration of the kabuliyat he would be liable to pay rent at the rate of Rs. 5 and Rs. 6 respectively, the rents during the currency of the kabuliyats being at the rate of Rs. 2 per bigha per annum. The defence to these actions was first that they had come into possession by an oral settlement made in the year 1306. The alternative defence was that if they did in fact execute kabuliyats they executed them under the coercion of the plaintiff. Both these defences were found to be unsubstantiated by the lower Courts. But there do arise two points of substance which were urged on behalf of the tenants in these appeals. The first is that the enhanced rent at the rate of Rs. 5 and Rs. 6 after the expiration of the kabuliyats was in the nature of a penalty and, therefore, irrecoverable in law. The second which depends to a large extent on the first contention, is that during the currency of these kabuliyats both defendants having been in possession of the land for a period of more than twelve years assumed the character of occupancy raiyats, and, therefore, the contract which they had entered into to pay enhanced rent after they had assumed that character was contrary to the Bengal Tenancy Act.

I have already decided the first question in a similar case which came before me this week, that is, whether an enhanced rent in these circumstances was in the nature of a penalty or not. There were two authorities quoted in that case before me which have been brought to my notice again in these appeals, which are before me now. The first case is to be found in Tejendro Narain Singh v. Bakai Singh [1895] 22 Cal. 658 where the covenant was to the effect that if the tenant failed to execute fresh kabuliyat after the expiry of the first then he was to pay rent at a higher rate. The Court in that case decided, Mr. Justice Rampini dissenting, that it was in the nature of a penalty and, therefore, could not be enforced. The other authority cited is that of Ganpat Singh v. Josodhur Singh [1913] 17 C.L.J. 590, where there was a similar provision. In my opinion, this provision which is to be found in these kabuliyats is not in the nature of a penalty. It is not an attempted enforcement of the payment of a sum of money for failure to perform an act which the party has contracted, nor a penalty for performance of an act which by the contract was forbidden and, therefore, in my view does not come within the meaning of Section 74, Indian Contract Act. This clearly was an agreement to pay rent from a certain date should the tenant desire to remain in possession of the land from that date. But the further point urged in these cases is that during the currency of these kabuliyats the tenants acquired the character of occupancy raiyats and, therefore, enhanced rent could not be recovered from them. In my opinion, the decision of this Court in S.A. No. 1135 of 1917 where this point is dealt with supports this view. In that case Mr. Justice Jwala Prasad states that it does not matter whether the tenant acquired an occupancy right at the date when the enhanced rate is to take effect or not. There is the further decision of a Division Bench of this Court, which, although not directly deciding the point, does so by inference and that is the case, S.A. No. 737 of 1919 in which Mr. Justice Adami and Mr. Justice Bucknill came to the conclusion which I have indicated. In my view, therefore, the learned Judges in the Courts below were wrong in deciding first, that this was a penalty and secondly, that the rent could not be recovered by reason of the character of the occupancy raiyats which the defendants had undoubtedly obtained before the enhanced rent came into force.

I would, therefore, allow both the appeals: there will be no order as to costs in this Court in Appeal No. 1602 of 1924, but there will be an order in this appeal for costs in the Courts below. Appeal No. 1603 of 1924 is allowed with costs in this Court and in the Courts below. There will be a decree in Suit No. 1566 of 1923 for Rs. 65-0-3 with interest at the rate of six per cent. per annum up to the date of realization, and, in Suit No. 1567 of 1923 for a sum of Rs. 149-2-0 with interest at the rate of six per cent. per annum up to the date of realization.

There will be a stay of execution until the 1st December and should the defendant-respondent in this Court prefer an appeal to this Court, until the disposal of that appeal.