M.H. Meyrick and Others vs Dipa Pandey and Others

Foster, J.—The plaintiff is a thekadar under the Sheohar estate in respect of a patti of 3-annas 9-pies in Mauza Bhataha. The second party defendants are the proprietors of the Sheohar estate. The defendants first party took leases from the Sheohar proprietors as follows: 16 kathas from 1308 to 1310 Fasli at an annual rental of Rs. 4-2-0 including cess, and 2 bighas, 1 kathas from 1309 to 1315 Fasli at a rental of Rs. 12-2 0 including cess. These leases were taken in 1901 and 1902. Thereafter, the defendant No. 1 took another patta from the Sheohar proprietors in respect of 3 bighas, 3 kathas of land, that is the whole of the area comprised in the previous kabuliyats at a rent which is called manhunda and which is a fixed amount of grain payable annually. This last patta having expired in 1322 Fasli a fresh settlement of the same land was taken by the defendant No. 1 from the Sheohar proprietors at a rent of 21 maunds 10 1/2 seers of rice of which, according to the kabuliyat, the "takhminan kimat" is Sections 61. This last lease is for the period 1323 to 1333 Faslis and is the basis of the present suit for arrears of rent for the years 1324 to 1327 Fasli. The lower Courts have held that the lands were of raiyati stock and were settled by the proprietors with the defendant No. 1 who is a settled raiyat of Bhataha village, that defendant No. 1 acquired occupancy rights by this settlement, and that by virtue of Section 29 of the Bengal Tenancy Act his rent must be taken to be the original cash-rent, namely, Rs. 12-2-0 plus Rs. 4-2-0 including cesses. Against this decision the plaintiff is appealing.

No argument has been addressed to me nor has evidence been pub before me to suggest that there has been any surrender or any other form of determination of the original cash rent tenancy. In paragraph 7 of the written statement it would appear to be asserted that although the first settlement of 16 kathas came to an end in 1310 Fasli yet the defendant No. 1 has in fact ever since the original settlement been in possession of the whole area of 16 kathas and 2 bighas, 7 kathas, 3 bighas, 3 kathas in all. The first argument that has been put before me on behalf of the appellants is one which appears to me to be directly contrary to the terms of Section 22(2) of the Bengal Tenancy Act. It is urged that, as the Sheohar proprietors are only co-sharers in the village and as they purchased this area of 3 bighas 3 kathas in auction-sale, they should be considered to be raiyats in respect of this area, and, therefore, the defendant No. 1 cannot be himself an occupancy raiyat. I need not discuss this argument in view of the plain terms of Section 22 of the Tenancy Act, but I may remark that there is not the slightest indication on the record that it has ever been the present appellant''s case in any previous stage of this suit that he is other than a thekadar of a separate takhta or patti held from the Sheohar proprietors including within its ambit the land settled with the defendant No. 1. In fact the kabuliyats which have been filed as well as the pleadings indicate that this is the position.

It is urged that the remark in the kabuliyat as to the "Takhminan kimat" is mere surplus age, its meaning being that -at the time of the kabuliyat 21 maunds 10 1/2 seers had a value of approximately Rs. 61. So it would be urged this was not a cash rent settlement, it was a fresh bhaoli settlement and the creation of a new holding and it would be urged that where the holding is changed and there is a break in continuity the new rent cannot be considered to be an enhancement. Moreover, as we know, bhaoli rents are uncertain and may change in value from year to year. In Fallon''s Dictionary the word " Takh-minan" which is evidently derived from the word " Takhmina " (meaning an estimate) is defined as signifying "by appraisement," "at a rough estimate" and there is a secondary meaning" more or less." It appears clear to me that the word in its context means that the value of 21 maunds 10 1/2 seers shall be estimated at Rs. 61 for the purpose of the settlement. So, in my opinion, the ruling quoted by the learned Subordinate Judge Tarap Ali v. Kalipada Bandopadhya (1916) Cri.L.J. 635 is in point. It is dear that the Rule of Section 29 of the Bengal Tenancy Act was intended to be a strict one which the Courts should not allow to be defeated or evaded. At reference to Section 147-A of the Bengal Tenancy Act will show that the Courts are directed to examine even the compromises that are filed in Court between landlord and tenant to see whether the effect of such compromises would be to enhance the rent in a manner or to an extent not allowed by Section 29. In my opinion the plaintiff''s suit, as it stands, is an attempt to defeat the provisions of Section 29 and the lower Courts have acted rightly in refusing any rent other than the original cash rent.

The last point urged is one which need not be discussed at length. The first proviso of Section 29 has been quoted as validating even an illegal enhancement if the enhanced rent has been realised for three years. This is an obviously mistaken view of the Section which it is unnecessary to dilate upon. It is not necessary to quote any authority, but I may refer to a Full Bench case Bipin Behari v. Krishnadhan Ghose (1905) 32 Cal. 395.

This appeal is dismissed with costs to the tenant defendants.