Midnapore Zamindary Co, Ltd. vs Krishna Kishore Mukherjee and Another

S.R. Das Gupta, J.—This is an appeal against a decision of the District Judge of Nadia dated the 23rd May. 1950, confirming in part a decision of the Munsif, 1st Court, Krishna-gar dated the 22nd December, 1949. The defendant is the appellant before us. The suit out of which this appeal arises is a suit for realisation of rent at the rate of Rs. 195|11|3 for the period between 1350 to 1355 B.S. It is the admitted case of both parties that in any event the claim for the period between 1350 to 1351 B.S. is barred by the law of limitation. The defendant denied the relationship of landlord and tenant. The matter arises in this way. There were two temporarily settled estates being touzis nos. 2767 and 2768. The land covered by the two touzis was the same. The touzi No. 2767 represented only 10 annas interest and touzi No. 2768 represented 6 annas interest in the said land. One Kirti Chandra Mitra had the Maliki right in touzi No. 2768 to the extent of 2 annas 10 gds. The said Kirti Chandra had granted a lease in favour of the defendant on the 19th January 1914. Under the said lease the defendant became liable to pay a total rent of Rs. 619|11|3 per year out of which he was to pay Rs. 416/- to Government on account of revenue and Rs. 195|11|3 to Kriti Chandra, the lessor. The rent at the aforesaid rate was paid from 1914 to 31st March, 1939. On the 22nd March, 1934, the present plaintiffs had purchased Kirti''s interest and since the said purchase they had been realising rent from the defendant. The touzis in question were temporarily settled estates. The said settlement was renewed from time to time. The period covered by the last of such renewals expired on the 31st March, 1939. Thereafter, on the 1st April, 1940, the Government took khas possession of the said touzi as the Maliks did not take any settlement from the Government. Such khas possession continued till the 31st March, 1945. Thereafter, the Government settled the touzis in question with the former Maliks. Such settlement was effected in the manner indicated in sub-clause 5 of clause 10 of Bengal Regulation VII of 1822. The said section provides that "if any person or persons when summoned refuse, neglect or omit to attend either in person or by representative, such person or persons shall be held to be bound by the decision of the majority of those who may attend, in agreeing or disagreeing to the jama, and his or their interests and estate shall, unless otherwise specially allowed, be held responsible for the Government revenue, and be liable to sale in the event of any arrear accruing on account of the settlement." Prior to such settlement notice under sub-section 4 of the said section had been issued to the former proprietors and as some of the proprietors when summoned did not attend, the settlement was effected in the manner indicated in sub-clause 5 of clause 10 of the said Regulation. It may be noted that the plaintiffs in the present suit were some of those proprietors who did not attend pursuant to the said notice. After the Government had resumed khas possession of the touzis in question it created a raiyati interest in respect of the entire 16 annas share in favour of the present defendant. In the settlement record which followed, the raiyati interest of the defendant was recorded in respect of the said entire 16 annas share, and the rent payable by the defendant was also recorded.

The present suit has been filed by the plaintiffs for recovery of the amount of rent payable under the lease dated the 19th January, 1914. The defence of the defendant in the suit is that as a result of what had happened there was no longer any relationship of landlord and tenant between the plaintiffs and the defendant under the said lease, and the only rent which is payable by the defendant to the plaintiffs is what is recorded in the Settlement records. The contention of the defendant was not accepted by the trial Court and the decision of the trial Court was upheld by the lower Appellate Court. The present appeal has been preferred to this Court against the said decision of the lower Appellate Court.

Mr. Sen Gupta appearing on behalf of the appellant raised three contentions. In the first place he contended that having regard to the provisions of sections 104H to J of the Bengal Tenancy Act the plaintiffs are precluded from disputing the correctness of the amount of rent which has been recorded in the settlement records. In other words, Mr. Sen Gupta''s contention is that the only amount which is payable by his client? is the amount which has been recovered in the settlement records, the plaintiffs not having filed any suit contesting the decision of the Revenue Officer as recorded therein.

The next contention of Mr. Sen Gupta is that the Government having taken possession in khas of the touzi in question whatever relationship there was between the plaintiffs and the defendant under the lease dated the 19th January, 1914, the same came to an end.

The last contention of Mr. Sen Gupta is that the present plaintiffs were not some of the persons who had taken settlement of the touzi in question. Although, Mr. Sen Gupta contended, the present plaintiffs are liable to pay to the Government the revenue payable in respect of the said touzi and for that purpose it may be said that the present plaintiffs were some of the persons who had obtained settlement of the touzi in question, but they are not full-fledged settlement holders in the sense that they can institute suits for the recovery of rents from the sub-tenants.

These are all the contentions which have been urged before us by Mr. Sen Gupta. In order to determine the first contention raised by Mr. Sen Gupta, viz., that in view of the provisions of section 104 H to section 104J of the Bengal Tenancy Act the plaintiffs cannot now dispute the quantum of rent which is payable by the defendant to the plaintiffs, viz., the rent which has been recorded in the settlement records. It is necessary to refer to the provisions of sections 104H and 104J of the said Act. Section 104H provides that "any person aggrieved by an entry of a rent settled in a Settlement Rent-Roll prepared under sections 104A to 104F and incorporated in a record of rights finally published u/s 103A may institute a suit in the Civil Court which would have jurisdiction to entertain a suit for the possession of the land to which the entry relates." Subsection (3) of the said section inter alia provides that such a suit may be instituted on any of the following grounds, viz., that land has been wrongly recorded as part of a particular estate or tenancy, or wrongly omitted from the lands of an estate or tenancy. Mr. Sen Gupta contended before us that section 104H entitled the plaintiffs, if they were aggrieved by the en- '' try in the finally published Settlement Rent-Roll prepared under sections 104A to 104F, to file a suit and one of the grounds which the plaintiffs could take in the said suit is that the defendant has not been properly recorded in the said record-of-rights. In other words. Mr. Sen Gupta''s contention is that the plaintiffs could have raised the plea in the said suit that the position of the defendant vis-a-vis the plaintiffs was really that of a tenure-holder and not that of a raiyat as recorded in the said settlement record and therefore the quantum of rent should have been recorded on the basis of the rent payable under the said lease. As against the said contention Mr. Mukherjee appearing on behalf of the respondents landlords contended before us that the only question which comes within the purview of section 104H is the question of the quantum of rent and if there is any dispute as to the quantum of such rent such a dispute alone can form the subject matter of a suit u/s 104H. The question according to Mr. Mukherjee as to whether or not the defendant was a tenure-holder under the plaintiffs by virtue of a contract entered into between the parties was not a question which comes within the purview of the said section. Having carefully considered the respective contentions of the learned Advocates for the parties I have come to the conclusion that the view propounded by Mr. Sen Gupta is sound and should be accepted. The provisions of sec. 104H to my mind clearly indicate that a person who is aggrieved by an entry of rent settled in the Settlement Rent-Roll prepared under sections 104A to 104F can institute a suit challenging the quantum of rent so settled and one of the grounds which can be taken for that purpose is that the tenancy in question belongs to a class different from that which is shown in the record-of-rights. That being so the plaintiffs could have instituted a suit challenging the quantum of rent which has been settled in the Settlement Rent-Roil and for that purpose he could have shown that the position of the defendant is not that of a raiyat but his position is that of a tenure-holder and therefore the amount of rent which is payable as such tenure-holder, as agreed to between the parties at the time when the lease in question was executed and which is different from the amount of rent which has been settled in the Settlement Rent-Roll, should have been the amount settled in the Rent-Roll. The result, in our opinion, is that the purpose of a suit contemplated in section 104H of the Bengal Tenancy Act namely to challenge the amount of rent which is settled in a Settlement Rent Roll, may be achieved by showing that the tenancy in question was different from the tenancy as recorded in the record-of-rights. On this view of the matter we hold that the present plaintiffs if they had felt aggrieved by the amount of rent settled in the settlement rent roll in question could have instituted a suit u/s 104H of the Bengal Tenancy Act.

The next question which we have to consider is what is the result of his not filing such a suit. In determining this question the provisions of section 104| becomes relevant

Section 104J provides that subject to the provisions of section 104H all rents settled under sections 104A to 104F and entered in the record-of-rights finally published u/s 103A or settled u/s 104J shall be deemed to have been correctly settled and to be fair and equitable rent within the meaning of this Act. The effect of these provisions have been considered in a decision of their Lord-ships of the Judicial Committee in the case of Kumar Chandra Singh Dudhoria v. Midnapore Zemindary Co. Ltd., (1) 46 C.W.N., 802. In that case it was argued before their Lordships that the fair and equitable rent fixed under the provisions of Section 104A to 104F of the Bengal Tenancy Act was conclusive as to its amount, subject to the right of appeal prescribed by section 104H, but that any question of title was only affected by the presumptive value attached to the record-of-rights by section 103B. In repelling that contention their Lordships observed :

The view of the learned Judges of the High Court appears to have been that sections 104A to 104J dealt only with the amount of rent and did not authorise the Settlement officer to deal with the question of liability, and, therefore, that the question of liability for rent was only affected by the presumption of correctness given to entries in the record-of-rights by section 103B of the Act. In particular they held that the Settlement Officer, in settling the rent, was not entitled to ''touch contractual rights.'' Their Lordships are unable to agree; in their view, either the Settlement Officer was merely fixing a fair and equitable rent in the ideal sense, regardless of the existing contractual rights, or it was his duty to consider and form a decision based on such contractual rights. A perusal of the grounds of appeal specified in section 104H affords complete conviction that the entry of rent settled in the Settlement Rent-Roll prepared under sections 104A to 104F included a decision as to liability to the payment of rent, and it will be remembered that rent is defined in section 3(13) as ''''whatever is lawfully payable or deliverable in money or kind.

It was further argued before their Lordships that "section 111 A gave an alternative remedy to them, even if the remedy provided by section 104H was no longer open. Their Lordships expressed their inability to accept that contention as well and held that "even if the language of the proviso to section 111A were loose enough to permit of it, their Lordships would not be prepared to cut down the specific provisions of sections 104H and 104J by any such construction; it would render nugatory the period of limitation of action provided by section 104H and the finality provided by section 104J." This decision of their Lordships of the Judicial Committee in the said case of Kumar Chandra Singh Dudhoria v. Midnapore Zemindary Co. Ltd., (1) came to be considered in a subsequent Division Bench case of this High Court reported in 49 C.W.N. 395 (2) (The Province of Bengal v. Midnapore Zemindary Co. Ltd.). Mr. Justice B. K. Mukherjea as he then was, after setting out the passage to which I have just now referred, proceeded to lay down the propositions of Law which according to Mukherjea. J was established by their Lordships'' decision in the said case of Kumar Chandra Singh Dudhoria. Those propositions are:--

(1) It is not correct to say that the Settlement Officer acting under sections 104 or 104J of the Bengal Tenancy Act can deal only with the amount of rent and not with the question of liability to pay rent and that entry in the final rent roll cannot touch contractual rights;

(2) in settling rent u/s 104, Bengal Tenancy Act the Revenue Officer has got to fix rent not in an ideal sense regardless of contractual rights but it is his duty to consider and form a decision based on such contractual rights;

(3) the tenant if he wants to dispute his liability to pay the rent as fixed by the Revenue officer has got to bring a suit u/s 104H in respect of the entry of rent against the landlord, within the time allowed by law and if he omits to do that, the rent must be deemed to be correctly settled and it would not be open to the tenant to set up his contractual rights in a suit brought by the landlord for recovery of the settled rent;

(4) the Revenue Officer is not only not competent to disregard or alter contractual rights, but on the other hand is bound to regard them and give effect to his view of them.

In our opinion therefore these decisions are clear authorities for the proposition that if a party, who may be aggrieved by the settlement of rent as recorded in the Settlement Rent-roll, does not avail of the opportunity, provided by section 104H and does not file a suit under the said section within the time allowed by law he would be precluded in a subsequent suit that may be brought by the landlord for the recovery of the settled rent from disputing the correctness of the rent settled in the Settlement Rent-roll and setting up his contractual rights. In this ease therefore the plaintiffs not having filed such a suit are precluded from disputing that the only liability of the defendant appellant was to pay the rent as entered in the Settlement Rent-roll. The plaintiffs will not be permitted to rely on the contractual liability of the defendant, which has not been entered in the Settlement Rent-roll. In this view of the matter we hold that the first contention of Mr. Sen Gupta should prevail.

Having come to the aforesaid conclusion on the first point raised by Mr. Sen Gupta it becomes unnecessary for us to go into the other points which have also been argued by him in support of this appeal. But as the points have been discussed at some length, I would shortly express my opinion thereon. Mr. Sen Gupta contended before us that the Government having taken khas possession of the touzi in question whatever relationship might have existed between the plaintiffs and the defendant under the lease of 1914 the same had come to an end. Mr. Sen Gupta conceded however that if the Government had taken the land into their own khas possession the position there would have been different and the proprietors would have in that event still continued to be the landlord although the Government would become entitled to assess the revenue afresh. But, Mr. Sen Gupta contended before us, the result of the Government''s taking possession of the touzi in question in khas is that the Government becomes the owner of the said land and if the Government becomes owner of the said land then all subsequent rights which had been created in respect of the said land by the original owners must come to an end. In support of that proposition Mr. Sen Gupta relied on the following observation of Mukherjea, J. in the said case of Province of Bengal v. Midnapore Zemindary Co, Ltd, (2) 49 C.W.N., 395.

Dr. Basak''s only argument is that as the Government bas taken khas possession of the touzi, the contractual rights of the parties must have ceased to exist. It is perfectly true that the Government is in no sense an agent of the Dudhurias, though it was so described in the settlement records nor has it derived its title from the latter. It has taken possession in exercise of its own rights under the provisions of Regulation VII of 1882.

Mukherjea, J. also in this judgment referred to some of the observations of their Lordships of the Judicial Committee in the case of Priya Nath Das v. Ram Taran Chatterji, (3) (L.R. 30 IndAp 159) the case on which Mr. Mukherjee appearing on behalf of the respondents of this appeal also relied. The said observations are as follows :-- "the settlement proceedings of 1884 cannot be held to have abrogated the rights of the respondent under the pottah, so long as the Raja Baroda Kant Roy and his heirs were themselves in a position to let him have the lands. In fact, the resumption by Government did not disturb the possession either of the Raja''s heirs or of Chatterji................If it had seemed good to the Government to take the land into their own khas possession, or to settle it on strangers to the contract with the respondent Chatterji, then the recorded rent would have been the rate of payment by that respondent." These observations, in our opinion, go to support the contention of Mr. Sen Gupta, viz., that if the Government chooses to have the land in its khas possession then whatever rights the existing owners or their tenants might have had in the land in question must come to an end. In this case it is not disputed before us that the Government took possession of the touzis in question in khas and the said touzis remained in such khas possession for a number of years commencing from the 1st April, 1939 till the 31st March 1945.

The last contention of Mr. Sen Gupta does not seem to us to be convincing. He contended as I have already indicated that the present plaintiffs are not some of the persons who had obtained settlement of the touzi in question from the Government. The settlement of the touzi in question according to him was obtained by the other co-sharers and although the present plaintiffs are liable to pay the Government revenue they cannot be said to be some of the persons who had obtained settlement of the touzi from the Government. As against this contention Mr. Mukherjee urged before us that in law there has been a joint settlement and the present plaintiffs are some of such persons who can be said to have obtained joint settlement of the touzi in question. This question seems to us to be completely settled by two decisions of this Court-in the case of Khan Sahib Abdul Latif Chowdhury v. Dhirendra Chandra Roy, (4) 44 C.W.N. 323, and in the case of Naresh Chandra Roy v. Sm. Snehalata Guha Roy, (5) 47 C.W.N. 730. It has been held quite clearly that when a co-parcener proprietor does not appear and object before the Collector in response to a notice issued under cl. (4) of section 10 of the Bengal Land Revenue Settlement Regulation and settlement of the mahal is made with those who appear, the non-appearing co-parcener is bound by the settlement which is a joint settlement and is not entitled to get malikana from those with whom the settlement is actually concluded. Rau, J., who delivered judgment in the case of Khan Sahib Abdul Latif Chowdhury (4), observed as follows :

It is contended on behalf of the respondents that this was not a case of a joint settlement at all but a case where under the last part of the third clause of section 10 one or more of the joint proprietors undertook the management of the mahal as Sadar mal-guzars. Accordingly, it is said, the) position is that contemplated in the eighth clause of section 10. The flaw in this argument is that if so, there was no need for the issue of a notice under the fourth clause of section 10. Notice is necessary only when a joint settlement is contemplated and such a notice was, as has been found by all the Courts, actually issued in the present case. It is true that the agreement executed by the defendants does not in terms purport to be a joint settlement on behalf of the proprietors but it does purport to be a maliki settlement, a term sufficient to distinguish it from a malguzari settlement of the kind contemplated in the last part of the third clause of section 10.

Mr. Sen Gupta laid emphasis upon the last sentence of the observation set out above and contended before us that the decision in the case really rested on the view taken by their Lordships, viz., that the document in question does purport to be a maliki settlement, a term sufficient to distinguish it from a malguzari settlement of the kind contemplated in the last part of the third clause of section 10. I am unable to accept this contention of Mr. Sen Gupta. The judgment of his Lordship indicates quite clearly that his Lordship held that it was a joint settlement as otherwise there was no necessity of giving any notice under the fourth clause of section 10. That this was the view taken by His Lordship in the said case is corroborated by the fact that in the subsequent case reported in (5) 47 C.W.N. 730, Rau, J., who sat singly followed the decision in the case of Khan Sahib Abdul Latif Chowdhury v. Dhirendra Chandra Roy (4) 44 C.W.N. 323, and held that the settlement in question in the circumstances mentioned was a joint settlement. His Lordship held in his judgment that "where following upon a notice u/s 10(4) of Regulation VII of 1822, a temporarily settled estate is settled with one of the proprietors, the other proprietors neither attending nor objecting, and the settlement is in a form used for settlement with proprietors, it is a joint settlement with all the proprietors and the absent proprietors are entitled to the rights thereunder and the benefits thereof", and his Lordship relied on the case decided by himself and Mukherjea, J., in Khan Sahib Abdul Latif Chowdhury v. Dhirendra Chandra Roy, (4) 44 C.W.N. 323. In. our opinion therefore these decisions are clear authorities for the proposition that in such a case the settlement is a joint settlement in favour of all and all of them are entitled to take benefits under the said settlement. In my view also that is the effect of clause (5) read with clause (4) of section 10 of Regulation VII of 1822.

In the result, therefore, we hold that this contention of Mr. Sen Gupta cannot be accepted as sound. Having held in favour of the appellant on the other two grounds, this appeal should be allowed and we make an order accordingly. The decisions of the courts below are set aside and the suit is dismissed. The appellant is entitled to the costs of this appeal.

Mallick, J.

I agree.