Kunji Imbirayi vs Subordinate Judge of Badagara and Another

M.S. Menon, J.—The tenant under Ext. A1, a marupat dated 4-7-1929, filed a petition, F.R.P2579/54-55, before the Rent Court of Badagara for the determination of the fair rent under the Malabar Tenancy Act, 1929. The petition was u/s 16 of the Act which reads as follows:

If any dispute arises as to the amount of fair rent payable in respect of any land under the foregoing provisions of this chapter, either the tenant or, after the expiry of three years from the commencement of the Malabar Tenancy (Amendment) Act, 1954, the landlord may apply to the Rent Court for the determination of the fair rent, and as such application being made, the fair rent shall be determined by the Rent Court

Provided that such determination shall take effect in respect of any agricultural year, only if the application is made in that year or within three months of the expiry thereof.

Both the tenant and the landlord were dissatisfied with the fair rent determined by the Rent Court and they appealed to the Subordinate Judge of Badagara. The appeal of the tenant was C.M.A. No. 602 of 1957 and the appeal of the landlord, C.M.A. No. 620/1957.

The appellate judgments also were not to their satisfaction and they have approached this Court for redress under Article 227 of the Constitution. The tenant''s petition is O.P. No. 808 of 1958 and the landlord''s O.P. 77 of 1959. The petitions were heard together and a common judgment will suffice.

The holding consisted of both wet and garden lands. The Subordinate Judge accepting the report of the Advocate, whom he deputed as Commissioner, fixed the fair rent for the wet lands at 274 Palghat paras and 31/2 edangalis of paddy with effect from the agricultural year which ended on the 14th March 1955. There is no doubt that this determination is correct and that it does not call for any interference under Article 227 of the Constitution.

Section 9 of the Malabar Tenancy Act, 1929, deals with the fair rent of garden lands. Sub-section (1) of that section says:-

In the case of garden lands, fair rent, subject to sub-sections (5), (6) and (7), shall be a share ascertained under sub-sections (2), (3) and (4) of this section, of one-third of the gross produce for the three years immediately previous to the date on which fair rent is to be ascertained

and the relevant portion of sub-section (5):

Fair rent determined under S. 16 shall not exceed twice the rent payable for the agricultural year 1949-50.

The Commissioner and the lower court estimated the fair rent of the garden lands-subject to sub-section (5)--at 610 cocoanuts 102 arecanuts and 1-3/8 pounds of pepper per year. There was no controversy about these figures. The only controversy as can be seen from paragraph 2 of the appellate judgment was about the scope and effect of sub-section (5).

The marupat fixes the fair rent for the garden lands at Rs. 2/- per year. It also provides for the payment of certain perquisites, the value of which the lower court has estimated, we think correctly, at Rs. 51/- for the agricultural year 1949-50. What the lower court has done is to add the two figures, double the total, and fix the fair rent for the garden lands at Rs. 106/-. This is clearly wrong.

The lower court was apparently labouring under three misapprehensions. The first was as regards the scope and effect of sub-section (5) of Section 9. It does not seem to have realised that the sub-section stipulates only the maximum which the fair rent shall not exceed, and that it is quite possible to have a fair rent which is equal to or below the maximum indicated by the sub-section.

The second misapprehension was that the area of the garden lands, in existence on the date of the marupat, and in the agricultural year 1949-50, were the same. It had apparently been augmented by the conversion of some portions of the wet lands into garden lands during the years that intervened and it should follow that the rent payable in respect of the garden lands for the agricultural year 1949-50 will be more than the sum of Rs. 2/-, fixed in the marupat for the garden lands in existence on the date of that document.

There can be no doubt as to what the lower court should have done for calculating the maximum under sub-section (5). It should have:

(1) as certained the area of the wet lands converted into garden lands between the date of the marupat and the agricultural year 1949-50;

(2) apportioned the rent of the wet lands fixed in the marupat between the wet lands in existence in the agricultural year 1949-50 and the wet lands converted into garden lands between the date of the marupat and the agricultural year 1949-50; and

(3) added to the rent so apportioned to the wet lands converted into garden lands the sum of Rs. 2/- the rent fixed in the marupat for the garden lands in existence on the date of that document.

The third misapprehension related to the perquisites payable by the tenant. The marupat makes it clear that they were payable not in respect of the garden lands alone but in respect of the entire holding consisting of both wet and garden lands. In view of this what the lower court should have done was to distribute the Rs. 51/- between the wet and garden lands in existence in the agricultural year 1949-50 and to take into account for the purpose of sub-section (5) only that portion of Rs. 51/- which is allotted to the garden lands concerned. These misapprehensions have affected the conclusion of the court below and the decision in so far as it relates to the determination of the fair rent of the garden lands has to be quashed and the court directed to fix the fair rent of the garden lands afresh in the light of the observations we have made in this judgment.

Order accordingly.

No costs.