Rameshwar Singh vs Sheikh Wazul Haque

Dawson-Miller, C.J.—The suit, out of which this appeal arises, was instituted by the plaintiff as landlord against the defendant as tenant claiming rent of a certain holding which had been purchased by the defendant from the previous tenant. The area of the holding was 5 bighas 7 cottahs 18 dhurs and the jama recorded in the Record-of-Rights was Rs. 16 and some odd annas. In addition to the jama so recorded, the plaintiff claimed certain rental under a custom of the village in respect of palm trees from the time when they became juice-yielding at certain rates. The plaintiff alleged with regard to this part of the claim, that under the custom of the village a raiyat who has palm trees pays to the malik for each tree which becomes Shirbar (yielding juice) 4 annas per tree for the Baishaki season, 4 annas for the Ghaur season and 2 annas for the Basanti or Aghani season and further alleged that he had been realising this all along.

The defendant in his written statement did not, in terms, traverse the allegation about custom. The written statement is not very sufficiently worded but his contention was that he was not responsible for anything more than Rs. 16 odd which was recorded in the Record-of-Rights.

Both the learned Munsiff before whom the case came and the Subordinate Judge in appeal disallowed that part of the plaintiff''s claim which related to the palm trees. It appears that there was no entry in the Record-of-Rights with regard to any such custom as that which was relied upon by the plaintiff. The rent recorded there was Rs. 16-1-1� and that was the rent which the defendant admitted to be due. The learned Munsiff considered that anything over and above that rental in respect of the palm trees was something in the nature of Abwab and was, therefore, not recoverable according to law.

The learned Subordinate Judge when the case went before him on appeal, pointed out that, according to the plaintiff, the tenants pay sairat for palm trees under a custom which had existed for a long time. He then refers in detail to the evidence of the various witnesses who had deposed to this custom. He points out that the witnesses could not say when the sairat had first of all been recovered, which is hardly surprising if indeed the, custom had existed for a long time and he adds that:

It is clear from the evidence of the plaintiff''s witnesses Nos. 4 and 6 that the sairat for palmyra palms is realised by the Raj as customary dues of the Raj. It is not realised as part of the rent of the holding. According to the plaintiff''s witness No. 2 the sairat is claimed in addition to the khatian jam.

The issue, therefore, which had to be determined was, whether or not the plaintiff had made out the custom which he set up under which he claimed this sairat. The learned Judge does not in terms come to a clear finding as to whether such a custom had been made out or not but he drew attention to the fact that the sairat for palms was not shown in the rent receipts granted to the defendant. He found as a fact however, that papers were kept in the Raj sherista some of which had been filed from the year 1311 to prove the realisation of sairat for the palmyra palms and he accepted these entries as genuine and did not consider, as had been suggested, that they were forged. In this state of affairs, it seems to me that the learned Judge ought to have come to a clear finding one way or the other, whether this custom whereby the landlord collected this additional rent for the palm trees had been proved or not, but all he says upon that point is:

I do not think that a landlord can claim anything more than the legal rent under any such custom.

By the legal rent, it is clear that the learned Subordinate Judge meant the rent recorded in the Record-of-Rights which did not include the rent said to be payable in respect of the trees. He then adds:

A few years'' payment by the defendant will not give any legal right to the plaintiff to such impositions.

And that is all he said about it, it seems to me that the learned Judge did not think it necessary to determine one way or the other whether the custom had been made out because he considered that even if such a custom did exist, it was a custom regarding certain illegal impositions which even a custom could not legalise. In my opinion, if that was his view, it was not justified. It is true that abwabs have been abolished under the Regulations for many years but the right to Bankar, Jhulkar and Phulkar was always an exception from the abolitions made by the Regulations and rent in respect of fruit trees or other classes of trees may well be charged in addition to the ordinary rent, either under an agreement between the landlord and tenant, or if any custom to that effect can be made out.

From the decision of the Subordinate Judge an appeal was preferred to this Court. The learned Judge before whom the case came considered that the decision of the lower Court could not be disturbed. His view was that the settlement of the land with the tenant included not merely the settlement of the land for agricultural purposes but also for the purposes of collecting and using the fruits of the trees and that, therefore, the tenant being entitled to the use and occupation of the land was entitled without the payment of any further rent to the fruits of the trees. He, further was of opinion that, if by any custom there was a sair for palm trees it must come under the term rent as defined in the Bengal Tenancy Act where those palm trees stand on the holdings. "So I take it that the question in this case is, what is the rent payable by the defendant for his land." That question the learned Judge considered was answered conclusively by the Survey khaiian which stated the rent to be Rs. 16-1-1�. He, therefore, dismiss-the appeal.

In my opinion, with great respect to the learned Judge, he failed to appreciate that a custom such as that set up by the plaintiff in this case might be a perfectly legal custom and that, if it could be proved to the satisfaction of the Court, the plaintiff would be entitled in addition to the rent to the sair or rent for the use of the palm trees. As, in my opinion, the learned Subordinate Judge did not come to any definite conclusion upon this question of custom, I think that this case should go back to the Court of the Subordinate Judge for him to arrive at a finding as to whether or not the custom alleged by the plaintiff in his plaint has been made out to his satisfaction. The custom there alleged is:

"Under the custom of the village a raiyat who has palm trees pays to the malik for each tree which becomes shirbar (yielding juice) 4 annas per tree for the Baishaki season, 4 annas for the Ghaur season and 2 annas for the Basanti or Aghani season.

If, in fact, that custom can be made out it is not an illegal custom but a perfectly valid one and one which ought to be given effect to. In arriving at a conclusion upon this point the learned Judge will, of course, bear in mind the facts which it is necessary to prove in order to establish a custom.

The only other point which was taken in this appeal was that no second appeal was permissible u/s 153 to the Bengal Tenancy Act. In my opinion, the question which arises in this case is clearly one relating to the amount of the rent payable. It is therefore, a case which is excepted from the provisions of the section and a second appeal is permissible.

The case will remain upon the file of this Court and the learned Judge will return his finding upon the issue stated within two months of this date. I do not think any additional evidence ought to be called in this case. The learned Subordinate Judge will determine the issue upon the evidence already upon the record.

Mullick, J.

I agree. I have only to add with regard to the preliminary objection that the case upon which the learned Vakil for the respondent relies, namely, Kanai Mahaldar v. Madu Sudan Ghose (1907) 6 C.L.J. 669 does not show what were the facts of that case. On the other hand the facts in the present case are similar to those in second appeal No. 815 of 1901 before the Calcutta High Court in the case of Nabu Sheikh v. Jogendra Nath Bhadra. There the plaintiff claimed at a certain jama and the defendant pleaded that the jama was included in a larger jama and therefore, asserted that the jama claimed was not due. It was held that the decision was a decision as to the amount of rent and a second appeal lay.