Munshi Juthan Lal vs Ram Dat Singh

Das, J.—The plaintiff purchased the entire 16 annas of Mouza Berhna Saidpur, bearing Touzi No. 2005, at a sale for non-payment of Government Revenue, and he commenced the actions out of which these appeals arise for rent against the tenants recorded as such in the finally published Record of Rights. The tenants put forward various defences to the suite, of which it is only necessary to mention that which was argued before the lower Appellate Court and which found favour with that Court, namely, that there has been a division of the holdings and distribution of the rent payable in respect thereof, and that, therefore, the suits were not maintainable in the form in which they were presented.

On behalf of the appellant it has been argued before me that the facts found by the lower Appellate Court do not justify the conclusion "that the holdings of these three suits have been split up." It will be noticed that so far as the Record of Right is concerned, it does not show that there has been any division of holdings and distribution of rent. The plaintiff is the purchaser at a revenue sale, and, therefore, it cannot be suggested that he has suppressed the rent roll and other Zamindari papers which would establish that there has been such a division with the consent of the Zamindar.

The law on the subject is contained in section 88 of the Bengal Tenancy Act. In order to succeed, the tenants must establish that the division was made either with the express consent in writing of the landlord or with the express consent in writing of his agent duly authorised in that behalf, provided that the consent of the landlord will be presumed if there is proved to have been made in the landlord''s rent roll any entry showing that the holdings have been divided or that the rent payable in respect thereof has been distributed. I do not think that the proviso has any effect at all in these cases, because no entry in the landlord''s rent roll has been proved to show that the holdings have been divided or that the rent payable in respect thereof has been distributed. The learned Subordinate Judge does indeed say that the road-cess return may be treated and is really a rent roll showing the holdings and the jama of the defendants within the meaning of the proviso of section 88, Bengal Tenancy Act." With this view I am wholly unable to agree. Rent roll is a term which has a definite significance, and is well understood in common language to mean the Jamabandi papers of the Zamindar, and I am of opinion that the term deliberately employed by the Legislature must be construed in its popular sense, meaning by the words "the popular sense" that sense which people conversant with the subject matter with which the Statute is dealing would attribute to it [see Grenfell v. Inland Revenue Commissioners (1876) 1 Ex D. 242 : 45 L.J. Ex. 465 : 34 L.T. 426 : 24 W.R. 582]. I do not think that anyone conversant with the subject-matter with which the Bengal Tenancy Act is dealing, would understand by the term "rent roll" the road-cess returns which the landlord is required to lodge under another Statute, and I am, therefore, unable to agree with the learned Subordinate Judge that the road-cess return is really a rent roll. In the second place, the learned Subordinate Judge himself says that the road cess returns in this case were not acted upon. He says that the Collector veined the estate u/s 21 of the Act. Now section 21 applies only where no returns are lodged by the holder of the estate. As there is a positive finding that the returns were in fact lodged on behalf of the proprietor, I thought that perhaps the Collector acted u/s 22 of the Cess Act", which gives him power to value the estate when he is satisfied that the return made is untrue or incorrect. Exhibit 6, however, (which is the order sheet in the cess re valuation case) makes it perfectly clear that the Collector was not satisfied with the return made and called for an explanation and, as no explanation was offered, he valued the estate u/s 21 of the Cess Act. This, in my opinion, is destructive of any argument that may be founded on the cess returns lodged by the late proprietor. The Collector rejected the returns altogether and proceeded on the basis that no returns were lodged by the proprietor. I cannot see how these returns which were rejected by the Collector can, by any stretch of language, be described as the rent roll within the meaning of the proviso of section 88 of the Bengal Tenancy Act. I hold that the tenants have failed to bring these cases within the proviso of section 88 and that, in order to succeed, they must establish that the sub division of the tenancy took place with the express consent in writing of the landlord or with that of his agent duly authorised in that behalf.

The lower Appellate Court relies upon two items of evidence as establishing the consent of the landlord or that of his agent duly authorized in that behalf: (1) the road-cess returns filed by the landlord, and (2) the rent receipts granted by the landlord. So far as Second Appeal No. 1163 of 1917 is concerned, he relies upon an additional item of evidence, namely, a plaint filed by the previous landlord. So far as the road-cess returns are concerned, they were admittedly not signed by the landlord, but by one purporting to be the manager of the landlord. The form of return prescribed by section 14 of the Cess Act shows that it must be signed by the holder or his authorized agent. I do not understand the lower Appellate Court to hold that the person who signed the returns as manager was in fact the manager of the holder or his authorized agent. The burden of proving authority was undoubtedly on the tenants. See Janki Sahu and Others Vs. Thakur Run Bahadur Singh and Others, . If the road-cess returns had been filed on behalf of the present plaintiff, then the matter would be peculiarly within his special knowledge and the burden would perhaps be on him to show to whom he had given authority to sign the road-cess returns. But the present plaintiff is a complete stranger and there is no privity between him and the previous landlord and, if he is to be affected with something done by the previous landlord, I think he is entitled to say prove that it was done by the previous landlord or by his agent authorized in that behalf." If these road-cess returns had been accepted by the Collector, it might have been possible to argue with some show of reason that they must be presumed to have been regularly filed on behalf of the landlord, but the learned Subordinate Judge himself records a finding that they were not acted upon. There is, therefore, on the one band, no evidence that these returns were signed by any person authorized in that behalf by the landlord; on the other hand, there is positive evidence that they were rejected by the Collector and were not in any way acted upon. In my opinion, it is impossible to hold that these returns prove the express consent in writing of the landlord or that of his agent duly authorised in that behalf within the meaning of section 88 of the Bengal Tenancy Act.

The rent receipts do not, in my opinion, stand on a better footing. They were admittedly given by the Patwaris, and there is no finding that the Patwaris had any authority to recognize a sub division of a tenancy. The question was debated in the case of Wyatt v. Sheo Gobind Sahu 36 Ind. Cas. 777 : 1 P.L.J. 414 : 3 P.L.W. 88 . The late Chief Justice of this Court in the course of his judgment said: "The position and duties of a Patwari are well known. He is a poorly paid underling employed only to collect rents due to his master and to grant receipts for the same His implied authority would extend to all subordinate acts which are necessary or incidental to his express authority. It is not suggested that he had authority to manage any part of the property. In my opinion, it is not within the scope of the authority of a rent collector to consent on behalf of his master to the transfer of an occupancy holding. That is an important act to be performed only by a person having some at least of the powers of a manager. I cannot accept the suggestion which has been made that it lay on the landlord in this case to prove that the Patwari had not authority to consent to the transfer Landlords would be in a very difficult position if it were held that Patwaris and other underlings should be presumed, till the contrary is shown, to have the power to sign away their master''s rights." Substantially the same view was taken in the case of Janki Sahu and Others Vs. Thakur Run Bahadur Singh and Others, . If it is not within the scope of the authority of a Patwari to consent to the transfer of an occupancy holding, it is difficult to see how it can be within the scope of his authority to consent to a division of the holding or distribution of the rent payable in respect thereof. I am of opinion, therefore, that the rent receipts are not evidence against the plaintiff as establishing a division of the holdings with the express consent in writing of the landlord or that of his agent duly authorized in that behalf.

The rent receipts and the road-cess returns were the only items of evidence relied upon by the learned Subordinate Judge in Second Appeal No. 1161 of 1917 and Second Appeal No. 1162 of 1917. In my view they were not admissible against the plaintiff and they do not justify the conclusion that there has been a division of the holdings within the meaning of section 88 of the Bengal Tenancy Act. I would, therefore, allow these appeals, set aside the judgment and decree of the lower Appellate Court and restore the judgment and decree of the Court of first instance.

I will now deal with Second Appeal No. 1163 of 1917. In this case, the lower Appellate Court relied, in addition to the evidence already referred to, upon a plaint filed by the previous landlord against Chota Lal for the recovery of rent for 1319, 1320 and 1321. It is impossible to say what the conclusion of the lower Appellate Court would have been, had it dismissed from its consideration the rent receipts and the road-cess returns. The survey area is shown as 3 bighas, 13 cattahs, 18 dhurs, bearing a jama of Rs. 11-6-7 dams. The argument is that the previous landlord by bringing a suit against Chota Lal in respect of 2 bighas, 16 cattahs, 4 dhurs at a rent of Rs. 8-4-1 showed conclusively that he had consented to a division of the holding, I cannot agree that it does. One noticeable feature about this appeal is that although the admitted area of the original holding was 3 bighas, 13 cattahs, 18 dhurs, the area after the alleged division comes up to 3 bighas, 9 cattahs, 7 dhurs. There is no explanation as to what has happened to 4 cattahs, 11 dhurs. I am wholly unable to come to the conclusion that there was a division of the holding within the meaning of section 88 of the Bengal Tenancy Act merely on the basis of the plaint filed by the previous landlord as to which there may be a complete explanation, especially as I am excluding from my consideration the rent receipts and the road-cess returns on which the lower Appellate Court strongly relied. I would, therefore, allow this appeal, set aside the judgment and decree of the lower Appellate Court and restore the judgment and decree of the Court of first instance.

The appellant must have his costs throughout.