Mahammad Sheikh vs Ramesh Chandra De

Ram Labhaya, J.—This appeal arises out of a rent suit. Plaintiff''s case was that paddy rent for four years (from 1951 to 1954 B.S. both inclusive) was in arrears. The paddy rent due from the tenant at the stipulated rate of 13 Mds. 5 Srs. per annum came to 52 Mds. 20 Srs. Its price was claimed at the market rate, which came to Rs. 420/-. The Plaintiff also claimed Rs. 50/- by way of compensation. Out of his total claim of Rs. 470/- he remitted a sum of Rs. 170/- and claimed Rs. 300/- only. The defence set up was that the rent was due for two years only and that according to the terms of the Kabuliyat which formed the basis of the suit, the Defendant was liable to pay Rs. 30/- per annum only and Plaintiff was not entitled to claim the price of paddy at the market rate.

The trial Judge found that rent for two years alone was due. On this point his finding was in favour of the Defendant but he agreed to give to the Plaintiff the price of paddy for two years at the market rate. He decreed the claim in part. The decree was for Rs. 210/-only. The Defendant appealed from the decree. Plaintiff put in cross objections. The learned Additional Subordinate Judge agreed with the Munsiff in holding that Plaintiff was entitled to recover the price of the paddy at the market rate. On the other point in the case he found that rent for four years was due. He therefore dismissed the appeal and allowed the cross-objections with the result that the full sum of Rs. 300/- which was claimed was decreed with costs. Defendant has appealed to this Court.

Mr. Dam, the learned Counsel for the Appellant has made a feeble attempt to show that the finding of the learned Additional Sub-ordinate Judge that the rent for all the four years for which it is claimed was due, is erroneous. He has not been able to contend that the learned Additional Subordinate Judge committed any error of law or procedure in arriving at the finding. Assuming that the finding is erroneous, this Court has no jurisdiction to interfere. The finding has not been assailed on any ground which could be regarded as valid u/s 100, CPC This finding there-fore shall stand.

The second question that arises in the case is whether Plaintiff can claim the price of paddy at the market rate. The Courts below are agreed that his claim was well founded. In coming to this conclusion they relied on--''Komaraddi v. Monmohini Dasya'' 21 Cal WN 100 (Notes)(A) and--''Akbar Ali v. Durga Kripa Sen'' 12 Cal LJ 589 (B). Mr. Dam has argued that though the Kabuliyat provides for rent in kind, there is a Clause in the document, according to which if paddy is not paid by 30th of Magh, the Defendant is liable to pay Rs. 30/- in all as the price of the said paddy.'' He contends that by virtue of this Clause if there is default in payment of paddy, the fixed amount of Rs. 30/- per year is all that the Plaintiff can claim. This Clause excludes his right to claim the price of paddy at the market rate. He has relied on--''Basiruddi v. Afasaran-nessa Bibi'' AIR 1917 Cal 26 (C)--''Afar v. Surya Kumar'' 12 Cal LJ 649 (C & D) and-- Bangshiram Mandal and Others Vs. Prasannomoyi Debi and Another, He has also argued that no oral evidence can be permitted to be adduced to vary the terms of a registered Kabuliyat and in support of this contention he had relied on--''Manindra Chandra v. Durga Sundari'' AIR 1917 Cal 734 (F) and--''Lakhatulla v. Bishwambhar Roy'' 12 Cal LJ 646 (G).

It is not necessary to decide in this case whether extraneous evidence is admissible to prove that the cash equivalent payable on failure to deliver paddy was mentioned either for purposes of stamp and registration or was a mere statement of price at the time of the agreement. There is in this case no extraneous evidence worth the name to be considered. The Plaintiff in his plaint did not allege that the cash equivalent mentioned in the Kabuliyat was for any of these purposes. No evidence bearing on this point was produced. His learned Counsel has referred to receipts for showing that paddy was delivered to the Plaintiff in certain years. Such delivery however is wholly inconclusive. The tenant could certainly deliver paddy according to the terms of the agreement. Delivery of paddy alone would not show that in the case of failure of delivery it was open to the landlord to demand the market price of the paddy. If paddy had been delivered in certain years when the price was higher than Rs. 30/- and the tenant could gain by not delivering it, the delivery might be a relevant circumstance bearing on the question of the intention of the parties. But there is no such roof that when paddy was delivered, the market rate of paddy was such that it would have been to the advantage of the tenant to pay the cash equivalent which was less than the price that the paddy would have fetched. Apart from this inconclusive circumstance there is no evidenced outside the terms of the document which it may be necessary to consider. No decision on the abstract question whether any evidence bearing on the intention of the parties which aims at varying the plain meaning of the words used in the document is admissible is necessary. All that remains to be done is to interpret the terms contained in the document.

The Kabuliyat describes the land with which it deals as Sokani land. The Defendant executed the Kabuliyat and stated in the document that he had prayed for Sokani settlement of the land and that the landlord agreed to make it as prayed for on condition of his agreeing, to give 21 seers of paddy according to the measurement of 87 Tolas. He also stated that the settlement in Sokani terms was for two years and undertook to deliver the stipulated quantity of paddy in the house of the landlord. It was further provided in the Kabuliyat that on his failure to deliver paddy within 30th day of Magh the Defendant would be liable to pay compensation at the rate of 10 seers of paddy per month till the date of realization. This was followed by the important Clause which is to be construed and which is in the following terms:

In default of payment of paddy within the 30th of Magh I shall pay Rs. 30/- in all as the price of the said paddy, I shall not be entitled to make any objection regarding the above terms. To this effect, I have executed this periodic Kabuliyat embodying the terms, of Sokani settlement for payment of paddy rent.

In--''Busiruddi Chowdhuri v. Afasaran-nessa Bibi'' AIR 1917 Cal 26(C) the suit for rent was based on a barga Kabuliyat. The tenant had undertaken to cultivate the land and make over halt the crops raised on the land to his lessor but the Kabuliyat provided that if he neglected to deliver crops as stipulated, he shall pay Rs. 25/- per annum on account of value of the crops. It was held by a Division Bench of the Calcutta High. Court that in'' view of the stipulation in the Kabuliyat, the landlord was entitled to recover only the stipulated sum and not the price of the crop at the market rate. The Clause was held binding on both the parties. This case is on all fours with the present case. The Sukani settlement of Assam corresponds to the barga settlement of Bengal. In both the tenant cultivates the land on condition of equal division of the crop with the landlord. In the present case the settlement has been described as Sukani but it really is not so as the tenant agreed to give a fixed quantity of paddy and not hall of the crop every year. It is, however clear that both in barga and Sukani settlement a tenant agrees to pay rent in kind. The question that arises is what happens when there is a provision in the document relating to settlement on produce rent, that in case of default "the landlord would recover a fixed sum in cash. Is the landlord not bound by it? The answer to this question given in--''AIR 1917 Cal 26 (C)'', is, that it is the cash equivalent provided in the document that the landlord must accept.

The next case relied on by Mr. Dam is ''12 Cal L.J. 649. (C & D). In this case the rent payable was partly in kind & partly in cash. The document of lease further provided that if the rent payable in kind was not duly delivered the tenant would be liable for a specified fixed sum. It was held that on the failure of the tenant to deliver the paddy the landlord was entitled to realise the fixed cash equivalent as its value and not its price at the current rate.

In-- Saroj Bandhu Simlai Vs. Mati Lal Ghose and Others, it was held that having regard to the terms of the Kabuliyat the money that had been put in the Kabuliyat as payable in lieu of a fixed quantity of paddy, is payable by the tenant, if he does not deliver the paddy. It was further observed that where a sum is fixed as payable by the tenant in lieu of paddy which is to be delivered by him as rent unless there is a strong indication that this money was placed for some other purpose than that of giving the tenant a choice to pay money or to deliver the paddy, it must be taken that the tenant has the choice either to pay money or to deliver the paddy, as stipulated. In-- Bangshiram Mandal and Others Vs. Prasannomoyi Debi and Another, the patta provided that if for any unavoidable reason the tenant was unable to pay the paddy its market price at the rate of Rs. 4/- should be paid. The amount fixed was Rs. 34/5/-. The total price of paddy together with road and public works cesses amounting to Rs. 50/- was to be paid according to certain kists. It was held that the landlord was not entitled to claim the value of paddy at its market price, he could only claim prices stated in the patta.

All the above cases lend full support to Mr. Dam''s contention. Mr. Chaudhuri''s contention is that though the Clause expressly provides that on failure to deliver the stipulated quantity of paddy the tenant would be liable to pay only Rs. 25/- in all, the sum of Rs. 25/- is to be taken as indicating the price of the paddy at that time. He also points to the likelihood of the sum having been mentioned for purposes of stamp or registration. In support of his contention he has relied first on ''12 Cal L.J. 589(B). In this case there was a tabular statement annexed to the lease deed. In this tabular statement there was an entry to the following effect:- "128 aris of paddy value 32 rupees." In the body of the lease the provision was that the paddy is to be delivered at a certain specified place and measured with a measure to be supplied by the landlord. Later in the body of the lease it was stated that if the tenant fails to pay the measure of the paddy according to the installment, then the arrears of rent in paddy or price thereof, with damages and costs shall be realisable by legal process. The learned Judges confined themselves to the terms of the lease and found that what was contemplated was payment of rent by delivery of paddy itself, though according to the final stipulation if the tenant failed to deliver paddy, it was open to the landlord to sue him for arrears of rent either in the shape of paddy or in money to an amount representing the price thereof. In the body of the document where the landlord was given the right to demand arrears of rent in paddy or the price thereof, with damages, the amount that the landlord could claim by way of price was not mentioned. The value of paddy viz. Rs. 32/- appeared only in the tabular statement. The learned Judges observed that in view of the stringent provisions relating to the delivery of the paddy they were not prepared to hold that the entry was made with a view to leave it to the tenant at his option either to deliver the paddy or to pay what might at a particular time be a very inadequate sum as the value of it. This case ''obviously does not lay down any rule of general application with regard to construction of similar documents. The distinguishing feature of the case is that the price of paddy was mentioned in the tabular statement only. In the default Clause itself no amount was fixed as payable by the tenant in the case of his default to deliver the paddy.

In--''Sheik Isaf v. Gopal Chandra'' 12 Cal L.J. 593(J) the tenants agreed to pay every year 80 cottas of paddy and 10 cottas of kalai measured by a cotta of 14 seers as the landlord''s share and stipulated that if owing to any cause they failed to give the same then, they will pay Its price amounting to Rs. 30/-in the month of that very year, the construction placed on the agreement between the parties was that the tenant agreed to pay to the landlord a yearly rent in kind and that, on his failure to do so to pay its price. The value of the produce as existing at the time when the agreement was executed was stated either for the convenience of the parties or for the purposes of registration. The provisions of Section 74, Contract Act were not applied on the ground that there was another default Clause in the : document which provided for interest at a certain rent per month in the case of default.

It is "worthy of note that in this case no extraneous evidence was considered. The document as it stood was construed and the construction placed on it was that the value of the produce payable was the value at the time of the execution of the agreement and that intention of the parties was that produce rent would be payable. In other words, the finding was that no cash equivalent was fixed as payable in lieu of produce. With great respect to the learned Judges I find it difficult to agree to the interpretation that has been placed on the document. The words used in the document, were that ''if owing to any cause we fail to give the same, then we will pay you its price amounting to Rs. 30/- in the month of that very year''. The Clause covered all subsequent years where paddy for any reason could not be delivered. The price of paddy was fixed and if paddy was not delivered the cash equivalent could be paid. If the sum of Rs. 30/- was mentioned to indicate the price it could not have covered subsequent years.

In--''Gurudas Sen v. Gobinda Chandra'' AIR 1920 Cal. 875 (K) which has also been relied on by Mr. Chaudhuri the tenant executed a Kabuliyat promising to pay as rent Rs. 4/- in cash and 91 aris of paddy as the landlord''s share of the produce. It was stipulated further that on tenant''s failure to pay the said rent and share of paddy, the landlord would be competent to realise the said rent and Rs. 36/- as the price of paddy. It was held that in the event of the tenant making default in paying the landlord''s share of the paddy, the latter was not entitled to recover the market price of the paddy at the time but only a fixed amount of Rs. 36/- Mr. Chaudhuri did not try to distinguish this case on facts. He relied on it for a limited purpose. He referred to the observations, of Chatterjea J. on p. 880 which read as follows:

A distinction may perhaps be drawn between'' such cases, and cases where there is an ex-press stipulation to pay the sum mentioned'' in the kabuliyat as the value of the paddy in the event of its non-delivery. But as stated above, even where there is such an express stipulation to pay the value mentioned in the kabuliyat in the event of non-delivery of the paddy, it has been held upon a construction of the contract in some cases that the value mentioned was the value of the paddyat the date of the contract or stated for the purposes of registration, while a contrary view has been taken in some other cases. The view taken in--''Afer Morole v. Prosunno'' (C & D) & the recent decisions, viz. that it is not open to the Court to hold that the value of the paddy mentioned in the kabuliyat is explicable on the ground that it was so done for fixing the stamp duty or registration fee, affects not only the latter class of cases, but the former class also where a money value is merely stated without any agreement to pay such value. It is desirable therefore that the question should be settled by a Full Bench.

On the facts of the case before him even Chatterjea J. was clear that there was an ex-press agreement that if the tenant did not deliver the paddy the landlord would be entitled to realise by suit Rs. 36 as the price of the paddy. In this view of the matter he agreed to the dismissal of the appeal and did not consider it necessary to refer the case to the Full Bench. He merely wanted to distinguish cases where money value is merely stated without any agreement to the effect that in the event of default such value would be payable. The present case does not fall in that category and the remarks of Chatterjea J. are not at all helpful to the Respondent.

''Hem Chandra v. Satya Kinkar'' 43 Cal L.J. 171 (L) is clearly distinguishable, in this case the provision was that in the case of default in delivering the sanja paddy the tenant was to deliver in addition two salis of paddy for every year. No price of the paddy was mentioned. It was held that the landlord was entitled to the value of the paddy.

The learned Counsel has also referred to an unreported decision in--''21 Cal W.N. 100 (Notes) (A)''. This case has got no bearing on the facts before us. All was decided in this case was that in an agreement by which the tenant agrees that in case of default on his part in paying a fixed quantity of paddy, the landlord would be entitled to realise a certain sum of money as the price of the paddy, the tenancy is on produce rent and not on money rent. The question whether in the event of default in paying paddy the landlord would realize its market price did not arise in that case.

The relevant Clause of the Kabuliyat in this case expressly provides that in the event of default of payment of paddy within the month of Magh the tenant shall pay Rs. 30 in all as the price of the paddy. There is an ex-press provision for the payment of the price of the stipulated quantity of paddy. It is not a case of a mere statement of the price of the paddy, which Chatterjea J. had in mind when he made his remarks reproduced above. The case thus is covered by the authorities relied on by Mr. Dam and also by the facts of the case in--''AIR 1920 Cal 875 (K)''. According to all these authorities the landlord in the event of default in payment of paddy can merely claim the fixed price of the paddy stated in the document and not its market price. There can be no serious controversy about the meaning of the clause. The fact that there is another default Clause in the document does not in the least alter the situation. There may be a further provision for damages. But the agreement of the parties as to rent is that a fixed quantity of paddy would be delivered and if that is not delivered, a sum of Rs. 30 would be paid as its price. There is no getting out of the situation that the tenant could deliver paddy and if he did not, he was liable only to pay Rs. 30 as its price.

It has been pointed out by Mr. Chaudhuri that the Kabuliyat if so interpreted would cause hardship to the landlord. He will be at the mercy of the tenant who will pay paddy if its price is less than Rs. 30 and Rs. 30 if the price of the stipulated quantity of paddy exceeds Rs. 30. This unfortunately would be the effect of the interpretation that this document yields to, but it cannot be helped. The document is to be interpreted as it stands and the language used has to be given its plain meaning.

It is not possible to ignore or alter the plain terms of the contract merely because they appear to be unreasonable. In point of fact the terms of this agreement may not be regarded as, unreasonable at all. The landlord at the time of the agreement could dictate his terms. It was for him to decide on what terms he will give the land to the tenant. He agreed to accept a fixed quantity of paddy. He could have left the matter at that. It was however present to the mind of both the parties that paddy may not be delivered at the proper time in a particular year. In that case the landlord would have been forced to claim the price of the paddy. This price was an unknown quantity. It could fluctuate. The landlord may have been forced to accept less than Rs. 30/- or more than Rs. 30/-according to market conditions, for in the absence of any provision for cash payment, he would have been entitled to demand the market price of paddy not delivered. By fixing the cash equivalent the landlord could avoid this risk. In his own interest he decided that the fixed quantity of paddy or the fixed quantity of cash would be adequate consideration for the use of the land that he was giving to the tenant. He thus exercised the option that was available to him at the time of settlement of the land and left it to the tenant to pay in kind or in cash as it suited him. He therefore cannot complain of any hardship in the matter. In this view of the matter the landlord is entitled to recover only the price of the paddy which is stated in the document. On that basis he is entitled to Rs. 120/- by way of rent for the four years in suit.

The landlord''s total claim included an item of Rs. 50 for compensation. From the total amount he relinquished a sum of Rs. 170/- and claimed only Rs. 300/- both on account of rent and compensation. The Courts below have given no finding as to whether Plaintiff is entitled to any compensation and if so on what rate or basis. Plaintiff also has not disclosed the basis on which he claims the sum of Rs. 50/- The rent due was not paid on four occasions. The sum claimed by way of compensation is not large and the learned Counsel for the Appellant has no objection to its being allowed to the Plaintiff to avoid remand of the case on a trivial matter. If this sum is allowed, the Plaintiff will be entitled to recover Rs. 170/- in all. The result of the foregoing discussion is that this appeal is allowed. The decree of the appellate Court is modified and the decretal amount is reduced to Rs. 170/-. Plaintiff-Respondent shall have proportionate costs on this amount in all the three Courts.