Mohebut Ali vs Mahomed Faizullah and others

This appeal arises out of a suit by a zemindar for ejectment of a putnidar upon the ground, that by reason of non-payment of rent by the putnidar, as stipulated in the putni grant, and the conditions contained therein, he, the Defendant, had forfeited his tenancy, and was therefore liable to be ejected. The Court of first instance referring to various sections of the Bengal Tenancy Act, held that the Plaintiff was not competent to maintain the action for ejectment, the lease being of a permanent character, notwithstanding the stipulation contained in the kabuliyat that in the event of the Defendant failing to pay the rent reserved at the time appointed, his lease would be liable to be cancelled, and the zemindar would be entitled to enter into khas possession.

The learned District Judge on appeal has, however, expressed a contrary opinion, and he has remanded the case for retrial with reference to certain observations made in his judgment. What that officer has in substance held is that, whereas, out of the sum, Rs. 136-6-6 reserved upon the putni lease, two items, Rs. 46-6-6 and Rs. 46 were payable to third parties, they could not be regarded as rent; and therefore the question is whether, by reason of the Defendant having violated the conditions in the kabuliyat as regards the payment of these two items of money, he is not liable to be ejected. And the learned judge has, in support of his view, referred to the case of Assanullah Khan Bahadur v. Tirthabashini I. L. R. 22 Cal. 680, and to secs. 179 and 195 (e) of the Bengal Tenancy Act.

Now, referring 10 the kabuliyat itself which was executed by the Defendant, putnidar, in favour of the Plaintiff zemindar, we find that what was agreed to he paid as rent was Rs. 136-6-6. The zemindar, had, however, to pay to the Collector as cesses upon the property in question Rs. 46-6-6, as also Rs. 46, as expenses for the maintenance of a musjid on the property demised. The putnidar was directed in the lease to pay, on behalf of the zemindar, these two sums of money to the Collector, and to the party who had to conduct the expenses of the musjid, respectively; the balance Rs. 50 being payable to the zemindar direct. There are various passages in the putni kabuliyat to which our attention has been called by the learned vakil for the Appellant, which unmistakably show that Rs. 136-6-6 inclusive of Rs. 46-6-6 and Rs. 40, was rent and nothing but rent. Sec. 3, clause 5 of the Bengal Tenancy Act defines what rent means. It says : "''rent'' means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant." And we think, having regard to the terms of the grant in this case, that the two items of Rs. 46-6-6 and Rs. 40 were lawfully payable on account of the use and occupation of the land held by the putnidar, just as much as the sum of Rs. 50, which was payable to the zemindar direct.

As regards the case of Assanullah Khan Bahadur v. Tirthabashini I. L. R. 22 Cal. 680 referred to by the District Judge, it appears that the suit instituted by the zemindar was for recovery of arrears of chowkidari tax payable by the putnidar under the putni settlement; and the defence was that it was an illegal cess, and could not be legally recovered. And it was held by this Court that as the payment of the said tax was one of the terms of the putni settlement itself, which was entered into between parties competent to contract, and was made for valuable consideration, and the putni regulation declares that putni taluks shall be deemed to be valid tenures in perpetuity according to the terms of the engagements under which they are held, and, moreover, as the amount which the putnidar agreed to pay as chowkidari tax, is paid quite as much on account of the occupation of the property as that which is expressly called "the rent," and is part of the ground rent, quite as much as the latter, it is not an abwab, and is therefore recoverable.

This case is rather an authority in favour of the Plaintiff than against him. But the learned vakil for the Respondent "has called our attention to certain observations made by the Court in p. 684. It will, however, be observed that those observations were made with ''special reference to the case that was quoted by one of the parties before it in support of the contention that the suit being of the Small Cause Court class, no second appeal would lie to this Court. In that case the claim was by the zemindar against the putnidar founded upon a contract for recovery of a sum of money which had been expended by the zemindar in the way of zamindari dak charges, which expenses, it was alleged, the putnidar was bound by his contract to bear. And the learned judges in the case of Assanullah Khan Bahadur v. Tirthabashini I. L. R. 22 Cal. 680 held, having regard to the facts of that case, that "the contract was one by which the putnidar undertook to pay the dak charges, and that he not having done so, the zemindar had to undergo the expenses and to sue for the money. If that was so, and if the contract was not to pay the amount to the zemindar in the first instance, the claim could not have been regarded as one for rent and was rightly treated as one for compensation for the breach of contract.

We do not think, having regard to the facts of the case before us, that the observations which we have just referred to, can be regarded as any authority for the proposition which the learned District Judge has laid down, and for which the Respondent has contended before us.

The learned vakil for the Respondent has, however, relied upon the case of Kutnessur Biswas v. Hurish Chunder Bose I. L. R. 11 Cal. 221. In that case, the claim was by an ijaradar to recover a certain amount of money, which, under the terms of the dur ijara lease, was payable by the Defendant to the zemindar. And the learned judges seem to have held that the amount sought to be recovered in the suit could not be recovered as " rent," and could not be recovered as such, because "rent" cannot be made payable as such to a third person.

Turning, however, to the statement of the case as given in the judgment, we do not find that the sum of money which the Defendant had to pay to the zemindar, and for which the suit was instituted, was any part of the " rent," properly so called, reserved upon the lease. Rather it would appear, on a reference to the report of the case in p. 222, that it was not so, and the only amount that was reserved in the lease as "rent" was Rs. 127, which was not the subject-matter of the suit.

Having regard to these circumstances, we do not think that the observations of the learned judges that have been referred to, could be regarded as any authority in the present case. We do not understand that the learned judges meant to lay it down as a broad proposition, and for which the Respondent has contended before us, that in every case of the kind, where a portion of the money reserved upon the lease is payable by the lessee to a third-person, it cannot be regarded as "rent,'''' and this, irrespective of the consideration whether it is " rent," as defined by sec. 3 of the Bengal Tenancy Act.

Upon these considerations we are of opinion that the two items, Rs. 40-6-6 and Rs. 40, as forming part of the sum, Rs. 136-6 should be regarded as "rent" payable by the Defendant.

Turning now to sec. 10 of the Bengal Tenancy Act, under which the present suit for ejectment seems to have been brought, we find that "a holder of a permanent tenure shall not be ejected by his landlord, except on the ground that he has broken a condition on breach of which he is, under the terms of a contract between him and his landlord, liable to be ejected, provided that where the contract is made after the commencement of this Act, the condition is consistent with the provisions of this Act." And the question is whether the condition in the putni lease as to forfeiture of the tenancy and the cancellation of the lease, is consistent with the provisions of this Act.

Sec. 65 of the same Act provides that "where a tenant is a permanent tenure-holder, a raiyat holding at fixed rates, or an occupancy raiyat, he shall not be liable to ejectment for arrears of rent, but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon.

So that, according to the provisions of this section, the only remedy that the zemindar has in the case of a permanent tenure or an occupancy holding, is to bring to sale the tenure or. holding in execution of a decree for rent, and not to eject the lessee, where there has been a default to pay the rent reserved.

Sec. 178 (e) of the Act provides :

Nothing in any contract between a landlord and a tenant made before or after the passing of this Act, shall entitle a landlord to eject a tenant otherwise than in accordance with the provisions of this Act." Sec. 179, which has been referred to by the learned judge, lays down: "Nothing in this Act shall be deemed to prevent n proprietor or a holder of a permanent tenure in a permanently-settled area from granting a permanent mohtrari lease on any terms agreed on between him and his tenant.

Whether this section qualifies the provisions of sec. 65, to which we have already referred, need not be discussed in this case; for we find it provided in sec. 195 (e) that ''''nothing in this Act shall affect any enactment relating to putni tenures in so far as it relates to those tenures.

This brings us to the Putni Regulation, and to see what is the provision in that Regulation, so far as regards the question we have to decide in this case. Sec. 3 of the Regulation (VIII of 1819) in the first clause provides that " the tenures known by the name of putni taluks, shall be deemed to be valid tenures in perpetuity according to the terms of the engagements under which they are held," and so on. And then clause 3 lays down that " in case of an arrear occurring upon any tenure of the description alluded to in the first clause of this section, it shall not be liable to be cancelled for the same, but the tenure shall be brought to sale," and so on.

Therefore nothing in the Bengal Tenancy Act affects the provisions of the section to which we have just referred, and it follows that the tenure of the Defendant cannot be cancelled, but it may be brought to sale by auction, at the instance of the zemindar, for default of payment of rent.

In this view of the matter, we are of opinion that the Munsif was right in the conclusion at which he arrived, and that it was not necessary for the-District judge to have remanded the ease for retrial. The result is that the decree of the Appellate Court will be set aside, and that of the Court of first instance restored with all costs.