Ragho Sinha and Another vs Dasrath Kanji

Ray, J.—This is a plaintiff''s second appeal in a suit for recovery of rent in respect of a holding consisting of two plots 593 and 763 recorded in khata No. 161 in mauza Parmanandpur otherwise known as Gangeya, tauzi No. 14439. The plaintiff claimed bhaoli rent in respect of plot 593 and nakdi rent in respect of plot 763, besides half of the price of the mangoes being the produce of 16 mango trees standing thereon of the years 1349 and 1350. The tenant-defendant resisted the suit on various grounds which it is not material to set out in detail. The trial Court gave the plaintiff a decree for bhaoli rent in a modified form in respect of plot 593 and the plaintiff-landlord did not re-agitate the issue in the Court of appeal. The trial Court, however, gave the plaintiff a decree for the cash rent as recorded in the record of rights in respect of plot 763 and dismissed his claim of half the price of the mangoes. As against the latter part of the trial Court''s decision, the landlord preferred an appeal and the lower appellate Court concurred with the decision of the trial Court. Hence this second appeal.

The controversy centred round the character of the land consisting in plot 763, in relation to the nature of the rent payable. The landlord claims that it is partly cash rent paying and partly bhaoli, while the defendant claims it to be nakdi only. The landlord produced certified copy of the khatian of the land in dispute. The entry whereof runs as follows: "Mango trees 16, seesum 28, mahua 1, jack tree, khaira 1, Gabhdar 2, baqabze malik wo raiyat bhauli nisf nisf." The tenant''s copy of the khatian Ex. A is a copy of Ex. 2 except the word "bhauli" not being there between the terms "raiyat" on one side and "nisf nisf" on the other. The trial Court gave preference to Ex. A expressing himself to say that as Ex. A is the original it could be taken to be more authentic than the copy. He, therefore, held that it was a cash paying land and the landlord''s claim in respect thereof was to be governed by Section 23-A, Sub-section (a) and the proviso. Section 28-A Sub-section (a) provides that when a raiyat has a right of occupancy in respect of any land of which the rent is paid in cash, the raiyat may appropriate the flowers, fruits and other products of any trees or bamboos standing on such land provided that if there is a specific entry in the latest record of rights regarding any tree which was standing on any land specified in Clause (a) before the date of the final publication of such record of rights, the rights of the landlord and the raiyat in the timber of such tree shall be in accordance with such entry or with any decision of a Civil Court affecting such entry. Construing this provision of law, he found that the landlord''s right to get a share of the produce of the trees--in the present case the mangoes--has been abrogated by the Legislature. It is only his right to timber of the tree that has been retained by the proviso. With this reasoning he dismissed the plaintiff''s claim as already stated.

The lower appellate Court disagreed and differed from the Munsif with regard to his reading of the khatians, but agreed with him that it was cash paying because while casting the total of cash rent paying lands and bhaoli lands comprised in the holding the disputed land is shown as cash paying. Holding, therefore, as he did that it was cash paying he also agreed with the Munsif in dismissing the plaintiff''s suit for the same reasons.

It is strenuously contended here that having in view the actual entries in the Khatian, the lands should be held to be partly cash paying and partly bhaoli. It is freely admitted by the defendant in his written statement, as well as, in his evidence in the witness-box that in respect of this land he has been paying not only the cash rent but also half the produce of the trees or the price thereof. This version is in accord with the entry in the settlement khatians. The learned trial Court has paid too much attention to either the presence or the absence of the word "bhaoli" as I have indicated above, but I do not find any difference because both the khatians indicate that the landlord was entitled to half the produce of the trees. The question that arises is whether in casting the total of Bhaoli and Naqdi areas in the holding and in that connection showing the area of the plot in dispute as cash-rent paying, it was meant that the effect of the specific entry very clearly showing that the landlord was being paid hall the produce of the trees as part of rent would be reduced to nothing. I cannot agree. The fact, however, remains that the lands comprised in plot 763 have always been held by the tenant on payment partly in cash and partly in kind. If I could be convinced to hold that the payment of half the fruits or their price was not by way of payment of rent, I could certainly agree with the contention of the learned Counsel for the respondent. This takes us back to the definition of rent. In the Act "rent" is defined as 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. It is not the landlord''s case that the trees belonged to him and the tenant on account of watching the trees or looking after them used to take half the produce and make the other half over to the landlord. The only relationship between the parties, as pleaded, within the four corners of the pleadings, in this case, is that of the landlord and tenant; nor is it challenged that this payment was not lawfully payable or deliverable. Therefore, having all along been paid on account of the use and occupation of the land by the raiyat having a right of occupancy in the land to the landlord, it is nothing but rent. Therefore, the rent of plot No. 763 consists partly of cash and partly of kind. That being determined, the question presents very little difficulty because in that view, it cannot be governed by Section 23A, Sub-section (a) and the proviso. The proviso by its very terms only applies to the case governed by Section 23A, Sub-section (a) and is by way of an exception to the tenant''s general rights in trees defined in Sub-section (a)(ii).

It has been contended by the learned Counsel for the respondent that the disputed lands do not answer the description of lands referred to in Sub-section (b) of Section 23A, because this plot is not a holding within the meaning of Section 40, Sub-section (1). The argument is that unless the mode of payment comes within the specification given in Sub-section (1) of Section 40, Sub-section (b) of Section 23A will not apply. The reason advanced is that Sub-section (1) of Section 40 speaks of a holding while Sub-section (b) of Section 23A speaks of lands. One thing, however, is clear that the Legislature conceives of cases in which the holdings referred to in Sub-section (1) of Section 40 will be governed by Sub-section (b) of Section 23A. If this is so, I do not find any difference, in meaning, to have been at all contemplated by the Legislature in using the word "lands" in Sub-section (b) of Section 23A and using the word "holding" in Sub-section (1) of Section 40. Even if this argument of the learned Counsel for the respondent is accepted or assumed to be correct, then a different position arises, namely, here is a piece of land which is not a holding but it is not cash paying but partly cash paying and partly bhaoli if such land is not at all thought of in Section 23A, there is no bar against the landlord to recover what has been contracted for between him and the raiyat. But in my opinion, however, this land is one the rent of which is paid in any of the ways specified in Sub-section (1) of Section 40, and, therefore, it is governed by Sub-section (b) of Section 23A in which case the landlord shall have 9/20ths and the raiyat shall have 11/20ths in the flowers, fruits and other products of all trees or bamboos growing on such land whether planted before or after the commencement of the Bihar Tenancy (Amendment) Act, 1934.

For the reasons already stated by me, I would allow this appeal and hold that the plaintiff is entitled to recover 9/20th of the price of mangoes produced in the years in question, but as the appellate Court has not given any finding as to the produce and as the parties have given different Versions with regard thereto, it is necessary that the appellate Court should come to his finding as to what was the produce and what was the rate of mangoes in the years in question and what was the amount the plaintiff would be entitled to recover in view of his findings on those points. The case, therefore, must be sent back to him for arriving at his finding and disposing of the appeal before him in accordance with law. It has been represented to me that no evidence was adduced by the parties in the Court below on the point of quantity of produce of mangoes in the years in question and their price. That is a question which will be considered by the lower appellate Court who can, if he thinks fit, send the case back to the trial Court giving the parties opportunity to adduce such evidence as they think fit or if he likes he can dispose of it in the manner as the trial Court has done though his method seems to be somewhat arbitrary. The cost of this appeal will abide the result.