Radhika Raman and Another vs Satnarain Koeri and Others

Mullick, J.—The plaintiffs are proprietors of two-thirds of Mauza Rajadih which in the year 1878 was leased in its entirety by two registered pattas by the predecessors of the plaintiffs and the remaining proprietors to the predecessors of the defendants. The pattas and the corresponding kabuliyats recite "that the entire Mauza Rajadih original with its dependencies comprising an area of 675 bighas of land without measuretnant is given by istimrari patta for cultivation from the year 1237 F.S. at the rate of Rs. 2-4 0 per bigha," and there is a clause at the end which runs as follows:

The rent of so much of the said land as will be found less by measurement shall be reduced at the above rate, the rent of so much land as will be found in excess shall be increased at the said rate.

On the 21st October, 1918, the plaintiffs brought the present suit for rent in respect of the years 1322 to 1325 F.S. and claimed at the rate of Rs. 2 4 0 par bigha on total area of 545 bighas 16 kithas and 11 dhurs shown as the area of the miuzi in the Record of Rights finally published in 1912. The defendants contest the suit and allege that the rent was Rs. 900 for the entire mauza per annum. The Subordinate Judge by his decree of the 7th January, 1920, has accepted the plea of the defendants and decreed the suit accordingly.

In appeal the District Judge has come to the same conclusion except with regard to the claim for the year 1322; be has found that the claim for this year is barred by limitation and he has allowed the cross-appeal of the tenants in regard to it.

The present second appeal is lodged against the Subordinate Judge''s decree of the 6th April, 1921.

Now, it has been contended by the learned Counsel for the appellants that the learned Subordinate Judge has mistaken the scope of the suit in declining to bold it to be a suit within the provisions of Section 52 of the Bengal Tenancy Act. Now, on this point the plaint is the best test. I have read the plaint carefully and I do not find any mention of what was the previous area upon which the previous rent was paid, It is certainly stated that the present area was 545 bighas odd and that the rental stipulated is Rs. 2-4-3 per bigha but there is not a word about the previous area which the tenants held and upon which they were paying rent. In my opinion the suit is a plain rent suit, based upon the mokarrari patta and the decision depends upon a pure question of fact. The omission to state the previous area was, in my opinion, intentional for the plaintiffs are apprehensive that if they wera to admit that the previous area upon which rent was paid was 400 bighas (which is now stated to be the area in argument before us) they would at once be confronted with the plea of res judicata based on previous litigation concerning this miuza.

Therefore, in my opinion, both the Subordinate Judge and the District Judge were right in treating this as a case based upon the patta; and the only question in the case is the proper construction of that document and what is the true area upon which rent was payable.

Now the patta itself leaves the area in question uncertain. The land demised is described as Miuza Rajadih which, according to the Revenue Survey, has certain fixed and defined boundaries. It is a distinct parcel of the land the area of which at the time when the mokarrari patta was given had not been ascertained by the parties and was estimated at a rough guess at 675 bighas; but a proviso was inserted in the lease stating that upon future measurement if the area was greater more rent would be paid, and if the area was smaller less rent would be paid. The question is whether anything has happened between that time and the suit which enables the Court to find that the area has in fact been ascertained and permanently fixed.

On behalf of the appellants it is contended that the area had never been fixed before the Scientific Survey of 1912 and that we are bound to accept the Record-of-Bights and to assess rent on 545 bighas odd. The respondents, on the other hand, rely on previous litigation between the plaintiffs who were then proprietors of a one-third share in the mauza, and themselves or their predecessors. The first of these oases was a suit instituted in 1908 for the recovery of the rent of the years 1312 to 1315 F.S. It appears from a judgment of Sir Lawrence Jenkins arid Mr. Justice Chatterji of the Calcutta High Court, dated the 9th August, 1912, that the contention of the tenants was that they were liable to pay a consolidated rent of Rs. 900 only per annum and the learned Judges, while not accepting the contention that the plea was in effect a variation of the terms of the registered patta, directed that further inquiry should be made in order to determine whether or not in the circumstances a payment of Rs. 900 for many years did not raise a pre-sumption that there has been such a measurement as would account for this payment. The case was accordingly remanded and on the 12th November, 1914, the Additional District Judge of Shahabad held that the area of the mauza was not 675 bighas but that the rental payable by the defendants was a sum of Rs. 900 per annum. There was no specific finding that the area was 400 bighas but it is clear that at the rate of Rs. 2-4-0 per bigha the area in the opinion of the learned Judge was 400 bighas.

Apparently, no further appeal was made to the High Court, but the struggle between the parties was not ended and we find that in respect of the years 1316 to 1321 there was again a suit in or about the year 1915. From the judgment of Babu Abinash Chandra Nag, Officiating Subordinate Judge of Shahabad, dated the 9th May, 1916, we find that the plea taken by the defendants was again the same as in the previous litigation and the material issues framed by the learned Judge were:--"(2) Whether the suit is res judicata" and "(3) What is the yearly rental?" and "(3)(a) What number of bighas of the standard of measurement contemplated in the grant is contained in the village." The learned Subordinate Judge found that the judgment of the Additional District Judge in the previous litigation was res judicata as to the question of rent. He also found that the yearly rental was Rs. 900. He further found that the area of the mauza was 400 bighas and he, therefore, declined to give the plaintiffs a decree at the rate of Rs. 2-4-0 per bigha on the area recorded in the Cadastral Survey Record. That case was taken on appeal to the District Judge and after it had been once remanded it was finally disposed of by Mr. F.G. Rowland on the 23rd August, 1916, who disagreed with the Subordinate Judge on all points and decreed the suit. There was then a second appeal in the High Court at Patna and a Division Bench of this Court passed the following judgment on the 6th July, 1918: "We feel that in this case the decree of the District Judge must be discharged and that of the Subordinate Judge restored. The learned Subordinate Judge found as a fact that it was res judicata that the rent up to 1315 was at Rs. 900 per annum and this was certainly so and this too was in accordance with the finally published Record of Eights. The learned District Judge was of opinion that it was open to him to enquire what the rents should be. This was not is accordance with Section 51 of the Bengal Tenancy Act. In order to claim a higher rate of rent than Rs. 900 per annum the plaintiff was required to prove either a novation of the contract or a decree of Court changing the rate of rent. A decree will. therefore, be made at the rate of Rs. 900 per annum, without prejudice to any suit which the plaintiff may wish to bring for enhancement of rent on the ground of increase of area."

It is contended by the appellants before us that the present suit is in accordance with the above directions given by their Lordships.

In my opinion, in view of the previous litigation, no suit for enhancement can lie. It is clear to my mind that the Division Bench of the Calcutta High Court, finding that the tenants had for a considerable period of time paid Rs. 900 per annum directed a remand for the purpose of ascertaining whether the area of Mauza Bajadih had been ascertained by measurement or fixed by arrangement between the parties and the reply given by the officer, who heard the case on remand, was that the area so ascertained or fixed was 400 bighas. In the judgment of Babu Abinash Chandra Nag, which was affirmed on appeal by the High Court, the finding was clear and distinct, that the conclusions arrived at by Mr. Ali Ahmad, the Additional District Judge, were res judicata; and it is now, in my opinion, too late in the day to attempt to urge that the findings of these two Courts on that question can be re-opened. It is contended that at best those findings were conclusive for the years in suit in those cases and that they cannot bind the plaintiffs for all time. In my view the issue upon which a remand was ordered by the Division Bench of the Calcutta High Court was: "What was the area of the mauza as settled between the parties?" and it is not possible, when once that question was answered, to urge that it was not binding in all future litigation.

Reliance has been placed by the learned Counsel for the appellants on various cases beginning from Prankissen Bagchee Monmohinee Dassee 17 W.R. 33; of the rest it is only necessary to refer to Lakhi Narain v. Sri Ram Chandra Bhunya 15 C.W.N. 921, Dhrupad Chandra Koley v. Harinath Singh Roy (1918) Cri.L.J. 563, Kesho Prasad Singh v. Tribhuan (1917) 1 Pat. L.W. 409 and Bishun Pragasa Narayan Singh v. Achaib Dusadh 1922. Pat. 215 In all these oases the principle is quite clear. If the landlord can prove what was the area upon which rent has been paid and what is the increased area upon which he claims rent, then the Court will give him a decree in respect of the excess. In this case that principle does not apply. Here there is no question either of encroachment or increment or of fraud or error. A fixed parcel of land was demised the boundaries of which were known and the only question was, what was the area of that parcel. Now if the landlord had by a previous measurement found the area of the mauza to be 400 bighas and he had shown that the measurement was either fraudulent or erroneous, it might have been possible for him in that case to claim on the 545 bighas recorded in the Record of Bights provided the standard of the measurement was the same, but here the land has not altered and its area has been adjudicated upon by a Court whose decree is final. In my opinion the finding that the area Section is 400 bighas is binding upon the parties so long as the contract subsists; and it is noteworthy that Babu Abinash Chandra Nag held that, owing to the difference in the standard of measurement between the Cadastral Survey and the standard prevalent at the time when the patta was executed, it was quite possible that the 545 bighas were the equivalent of the 400 bighas in respect of which rent had always been paid.

Our attention has been drawn to the fact that defendant No. 11, who is the co-sharer of the remaining one-third part of the mauza, realized in 1911 rent according to the area recorded in the Cadastral Survey. It is not quite clear how this area was found to be the correct area in 1911 when the Record of Bights was not published until 1912, but one explanation may be that the Record of Bights commenced in 1909 and that the plaintiff in that suit took the area from the draft Record of Bights. But the question, whether the plaintiffs in the present suit are entitled to rely upon the decree given to their co-sharer, has been considered by the Subordinate Judge and after taking it into account he is still unable to decree the present claim on the footing that the true area is 545 bighas odd. In my opinion the learned Subordinate Judge was correct.

There is, finally the question of the cross-appeal which has been decreed by the District Judge. The point of limitation does not seem to have been pressed in the trial Court, but it was argued before the District Judge, and it is quite clear that the learned District Judge''s decision is erroneous on this point. The learned Judge finds that the rent for 1322 is barred by limitation. If, as it appears to be the case, the period of limitation is 6 years (the mokarrari patta being a registered document) then obviously no question of limitation can arise. But even if it were held, as the learned Judge seems to have held, that 3 years is the period of limitation, then the period in this case expired on the 24th September, 1918; and it is admitted that the Civil Court was then closed and did not reopen till the 21st October, 1918, when the plaint was filed in Court. Therefore, the suit was in time.

The result, therefore, is that the appeal will be decreed in a modified form; the decision of the District Judge with regard to the rent for the year 1322 will be set aside and the plaintiffs will be entitled to a decree for the full amount at the rate allowed by the Subordinate Judge whose decree will be restored.

With regard to costs, the defendants will get their full costs as allowed by the Subordinate Judge for his Court; in respect of the costs incurred by them in the Court of the District Judge and in this Court they will get five-sixths of the costs in each Court.

Bucknill, J.

I agree.