Mt. Ram Kali Kuar vs Madan Mohan Lal

Kulwant Sahay, J.—These appeals arise out of suits for recovery of naqdi and bhaoli rents for the years 1327-1330. There was also a prayer for enhancement of the naqdi rents under the provisions of Section 30(b) of the Bengal Tenancy Act. Appeal No. 118 which arises out of Suit No. 250 of 1923 is by the defendant; the other appeals are by the plaintiff.

The learned Munsif made a modified decree for the arrears of bhaoli and naqdi rents in all the suits; but he disallowed the prayer for enhancement of rent. The learned District Judge on appeal gave decrees to the plaintiff for the full amount of the arrears of rent claimed; but agreed with the Munsif in disallowing the prayer for enhancement.

The landlord''s appeals are confined to the question of enhancement. The appeal of the defendant in Second Appeal No. 118 of 1925 relates to the question as to whether the defendant in that suit was liable for the rents.

As regards the appeals of the plaintiff, the ground upon which the prayer for enhancement has been disallowed is that in each case the tenants held lands for which rents are payable partly in cash and partly in kind; that the holding in each case was a single holding for which both naqdi and bhaoli rents were payable and, that, as such, Section 30 of the Bengal Tenancy Act had no application, and the plaintiff was not entitled to enhancement of the naqdi rent. In the plaint, as originally framed, the plaintiff treated the lands of both kinds, viz., those for which bhaoli rent was payable as well us those for which naqdi rent was payable, as one holding; but subsequently he made an application for an amendment of the plaint on the allegation that there were really two holdings held by each tenant, one being naqdi and the other bhaoli.

This prayer for an amendment of the plaint was disallowed and both the Courts below have proceeded on the assumption that the lands in each suit formed only one holding, the rents whereof were payable partly in kind and partly in cash. The learned District Judge has observed that in his district, viz., in the district of Gaya, decrees for both bhaoli and naqdi rents are executed as rent decrees as a matter of regular procedure. He further observes that it was the presumption in this district, in the absence of direct evidence, that the naqdi and bhaoli lands in the possession of a tenant formed part of the same original settlement, and a reference was made to Grierson''s Notes on the District of Gaya, at page 70, where it is remarked that "by village custom each tenant has in his holding a fair proportion of land held on each tenure." Reliance was placed on behalf of the plaintiff on the fact that the lands for which naqdi rents were payable were separate and distinct from the lands for which bhaoli rents were payable and that each class of land was entered in separate Miatas in the survey and from this it was sought to be argued that the naqdi and the bhaoli lands formed separate holdings.

The learned District Judge discarded this, argument with the observation that the separate entries in the survey khatian were only a matter of procedure and that it did not imply that any inquiry into the origin of the holding had been made. The learned Judge, therefore, held that, in the absence of direct evidence to the contrary, the lands in suit belonged to a single holding in each case.

In my opinion the grounds given by the learned District Judge for holding that both classes of lands in each suit formed a single holding are not sound. Because decreed for bhaoli and naqdi rents are usually executed as rent decrees in the District of Gaya, it does not necessarily follow that in each case a presumption will be raised that the naqdi and bhaoli Iands formed a single holding. If the landlords and the tenants agree to treat the different classes of lands as a single holding, the Courts can proceed to execute decrees obtained for both bhaoli and naqdi rents as rent decrees. But, where parties do not agree that each class of land forms a single holding, no presumption can be raised, and the Court has to decide the question upon the facts and circumstances of each case. If the presumption raised by the learned Judge be accepted as correct and if; as appears from Grierson''s notes on the District of Gaya referred to by the learned Judge, each tenant has in the district a fair proportion of both classes of land in each holding, it would follow that there could be no suit for enhancement of naqdi rent in the district of Gaya.

The survey khatian, it appears showed that the bhaoli and the naqdi lands were distinct and separate and each class of land was entered in a separate khata. Prima facie this would show that they formed separate holdings, and a presumption was raised by this entry in the record of rights in favour of the view that the holdings were separate, and it would be for the defendant in each case to show that the bhaoli and the naqdi lands formed a single holding. The learned Judge himself finds that lands subject to naqdi and bhaoli rents are separate and distinct and they are separately entered in the survey khatian. The necessary conclusion, therefore, would be that they are separate holdings. No doubt if the same land be held by a tenant on payment of rent, partly in cash and in kind, and there be no distinction as to the portions of the lands for which bhaoli or the naqdi rents are paid, the holding must be treated as a single holding, and Section 30 of the Bengal Tenancy Act would not apply.

In the present case it appears that the Lands are distinct and separate and there does not appear to be any reason to assume that they constitute a single holding for which rents are payable partly in cash and partly in kind. I am of opinion, therefore, that the amendment of the plaint as prayed for ought to be allowed and opportunity given to the defendants to show that the two classes of lands in each case form one holding and not two holdings as alleged by the plaintiff and as shown in the survey khatian. If the defendants, prove that the lands form one holding, the claim for enhancement of rent would be disallowed. If they fail to show that they form one holding then the Court below will proceed to determine the amount of enhancement and the period from which it will take effect. If necessary the District Judge may refer the suits to the trial Court for finding on the question of enhancement.

The decrees of the learned District Judge will be modified in each case, and the finding on the question of enhancement will be set aside and the appeals remanded to him for disposal as observed above. The question as regards the amount of rent for the years in suit has not been raised and the decree in that respect in each suit will stand. The plaintiff in each case is entitled to his costs in each appeal.

As regards the defendant''s appeal No. 118 of 1925 the facts are shortly these. One Mt. Shitabo Kuer was a co-sharer landlord to the extent of 5 annas 4 pies share. She brought a suit for rent against the defendant in Suit No. 250 and obtained a decree on the 19th March 1919 which was affirmed on appeal on 28th October 1919. She executed the decree and purchased the holding in execution on the 1st of July 1920 and obtained delivery of possession on the 9th May 1921. She then conveyed her interest, which she acquired by her purchase, be one Raghubir Singh the grandson of the defendant in Suit No. 250 on the 19th July 1921. There was a Collectorate partition between the co-sharers which was completed in the year 1326.

Under this partition the holding of the defendant in the present suit was allotted to the plaintiff and according to this partition the plaintiff became entitled to receive rent for the holding of the defendant from the year 1327. The appellate decree in favour of Shitabo Kuer was passed after the partition of 1326. Upon these facts the learned District Judge has held that the sale in execution of the decree obtained by Shitabo Kuer was not a sale in execution of a rent decree and that the holding did not pass and that the present plaintiff was entitled to proceed against the present defendant ignoring the sale in execution of the decree of Shitabo Kuer.

The question, therefore, resolves itself into this: A decree for rent was obtained by a person who at the time when the decree was passed had ceased to be landlord in respect of the holding. The holding could not be sold in execution of such a decree u/s 65 of the Bengal Tenancy Act. The decree was only a money decree and right, title and interest of the judgment debtor merely passed; by the sale, and the plaintiff who was the landlord at the time when the sale took place was not bound to recognize the said sale.

Reliance has been placed on behalf of the appellant upon the Full Bench Decision of the Calcutta High Court in Khetra Pal Singh v. Kritarthamoyi Dassi 1906 33 Cal. 566. This decision of the Full Bench however, was explained by the Privy Council in Forbes v. Maharaj Bahadur Singh [1914] 41 Cal. 926 where it was held that the right to proceed to sale u/s 65 of the Bengal Tenancy Act is dependent on the existence of the relationship of landlord and tenant at the time when the remedy provided by law is sought to be enforced. Their Lordships observed:

To acquire the right which the section (Section 65) gives, not only the person obtaining the decree must be the landlord at the time, but the person soaking to execute it by sale of the tenure must have the landlord''s interest "vested" in him. In other words the right to bring the tenure or holding, as the case may be to sale exists so long as the relationship of landlord and tenant exits

This decision of the Privy Council is conclusive on the point, and the decision of the learned Judge is correct. This appeal must therefore be dismissed with costs.

Ross, J.

I agree.