Ramji Ram vs Ram Kumar Singh and Others

Dawson Miller, C.J.—These appeals arise out of suits instituted by the Appellant as Plaintiff against a number of tenants claiming assessment of rent or in the alternative enhancement of rent under the provisions of Section 30 of the Bengal Tenancy Act. The Appellant is the proprietor of mauai Jehangirpur Mangarpal Zapti in the Patna District bearing tauzi No. 3183. The mahal which consists of a single village comprises what were originally two separate estates. One known as Jehangirpur Mangarpal Zapti was permanently settled with proprietors in 1855 and was entered in the Collectorate roll as tauzi No. 725. The other was known as Manyarpal Taufir bearing tauzi No. 746. It will be convenient to refer to these two estates as the Zapti and the Taufir ostites. The Zapti estate was sold in 1897 for non-payment of Government revenue and was purchased by the Plaintiff''s father since deceased. The village in which the estate is situated is bounded on the north by the river Ganges. Within the boundaries of the village lie certain plots which were not included in the settlement of 1855. These are scattered about in different parts of the village but for the most part have the river as their northern boundary. In the year 1867 they were formed into a separate estate known as Mangarpal Taufir bearing tauzi No. 476 as already stated. This estate was also sold for nonpayment of revenue and was purchased by Government in 1879. From that time up to the year 1915 when it was amalgamated with the Zapti estate in circumstances about to be stated the Government remained the proprietor receiving rents from the tenants.

In 1903 a cadastral survey was held including both the Zapti and Taufir estates and in the finally published record-of-rights the Plaintiff''s father was recorded as the proprietor of the Zapti estate and the Government as the proprietor of the Taufir estate. It appears that the Plaintiffs father had always had difficulty in collecting the rents from the tenants on his estate. The record-of rights of 1903 recorded with regard to the rents payable by the tenants of the Zapti estate that up to that time no rents had been paid. During the settlement operation of 1903, after publication of the draft record, proceedings were taken under Part II of Chap. X of the Bengal Tenancy Act for settlement of fair and equitable rents for the tenants of the Government''s Taufir estate. This was done u/s 101 and the succeeding Sections of Part II of Chap. X and rents were accordingly settled. After the final publication of the record of-rights proceedings were also taken under Part III of Chap. X for settlement of rents payable by the tenants of Zapti estate. This was done und�r Section 105 and the succeeding Sections of Part III of Chap X. The rents then settled have been paid to the Government in the one case and to the Plaintiff or his father in the other since that date.

The Plaintiff''s father, however, claimed that the lands of the Taufir estate really formed part of the Zapti estate settled with his predecessor-in-interest in 185. This contention was raised during the settlement operations but he failed to establish his claim before the Revenue authorities and in 1913 brought a suit against the Secretary of State to establish his title to the lands included in the Taufir estate. In the main his claim failed. The decree of the trial Court gave him a small portion only of what he claimed. He appealed to the High Court at Calcutta. In that appeal a compromise was come to by which the Government agreed to settle the disputed lands with the Plaintiff at a revenue equal to 80 per cent of the rental obtained from the tenants and no amalgamate the newly settled area with that of the Zapti estate. Toe Plaintiff also agreed to forego his rights in that portion of the land in respect to which a decree had been pasted in his favour by the trial Court and to take a patta and execute a kabaliyat giving effect to the terms of the compromise. A decree was then passed in accordance with the terms of the compromise. The Plaintiff''s father thus recognised the Government''s proprietary right in the lands in suit and took settlement from them of those lands which were amalgamated with the Zipti estate, the whole estate being entered in the Collectorate under a new tauzi No. 3183. The compromise decree is dated the 21st February 1916.

The Plaintiff in the present suits claimed that the lands on the Taufir estate had all along formed part of the Zapti estate settled with his predecessor in 1855 and that the settlement of rents made at the instance of the Government under Part I of Chap. X of the Bengal Tenancy Act during the purvey operations of 1903 was not binding upon him and that it was still open to him to ask for a settlement of fair and equitable rems.

There is a concurrent finding of both the trial Court and the lower appellate Court that the Taufir lands were not included in the lands settled in 1855. Moreover, in his suit against the Government the Plaintiff accepted by his compromise the settlement of those land at a certain revenue and acknowledge the Government''s right to make such a settlement. In view of the finding of the lower Courts it is not open to us in second appeal to go into this question and we must hold that the Plaintiff is bound by the proceedings of 1903 entered into by his predecessor-in-title

The claim for enhancement of rent, however, stand upon a different footing. It is more than 15 years since the rents were settled and there is nothing in Section 37 or Section 113 of the Bengal Tenancy Act to operate as a bar to a suit for enhancement.

The Plaintiff''s claim for enhancement is based upon Section 30 of the Bengal Tenancy Act. He contends in the first place that the rent paid by the raiyats of the Taulir lands is below the prevailing rati s paid by occupancy raiyats for lands of a similar description and with similar advantages in the same village or in neighbouring villages within the meaning of Clause (a) of that section. In the alternative he claims that he is entitled to enhancement because there has been a rise in the average local price of staple food-crops during the (sic) of the present rents within the meaning of Clause (b) of the section. The learned Munsif before whom the case came for trial was of opinion that the Plaintiff had made out a came for enhancement under Clause (a) of Section 30 on the ground that the rents paid were below the prevailing rates The Subordinate Judge on apnea) considered that the claim for enhancement u/s 30, Clause (a) was haired in the present case by the provisions of Section 31B. The view he took was that the proceedings for settlement of rents of the Taufir lands during the survey operations of 1903 amounted to a determination of the prevailing rate within the meaning of Section 31B and that the rents having been determined in accordance with that rate, there could never afterwards be an enhancement on the ground mentioned in Section 30(b). He considered, however, that there might be an enhancement on the ground of a rise in the average local price of staple food-crops within the meaning of Section 30(b) and as this matter had not been considered by the Munsif he remanded the case to the trial Court to determine whether the Plaintiff was entitled to an enhancement u/s 30(b) and if so, to what extent. From that decision the Plaintiff his appealed to this Court.

It being more than 15 years since the rents were last settled, the Plaintiff is clearly entitled to an enhancement if he can show that the rent paid by the raiyat in any particular case ia below the prevailing rate paid by occupancy raivats for lands of a similar description and with similar advantages in the same village or in neighbouring villages and that there is no sufficient reason for his holding at so low a rate, it is not disputed by the respondents that the Plaintiff, if he should fail to make out a case u/s 30(a), in entitled to enhancement under a. 30(b) if he can prove a rise in the price of staple food crops during the currency of tie present rent. The Plaintiff, however, is not content with this and contends that the case falls within the provisions of Section 30(b) and that the late of rent paid by the tenants is in fact below the prevailing rate. The real question is, what is the prevailing rate and how is it to be ascertained The Defend mts rely upon the provisions of Section 31B. That Section reads as follows:--"When the prevailing rate has OUCP been determined by a Revenue Officer under Chap. X or by a Civil Court in any suit under this Act, it shall not be liable to enhancement save on the ground and to the extent specified in Section 30(b) and Section 32." Section 32 limits the extent to which an enhancement can be made on the ground of a rise in prices. I entirely agree with the learned Munsif when he says that the wording of S 31B is not very happy. It refers to the determination of the prevailing rate by a Revenue Officer under Chap. X of the Act but on Turning to Chap. X no provision wlll be found for determination of the prevailing rate by a Revenue Officer or anybody else and the expression prevailing rate is nowhere there used. Chapter X proves for the preparation and puoltcation of a record-of-rights and for the settlement of rents in certain cases. u/s 102 the particulars the be recorded include the rent payable at the time the record of this being prepared. Part IT of Chap. X which begins with Section 104 provides for the settlement of rents and (sic) a of a settlement rent roll and (sic) of objections in cases where a settlement of land revenue is being or is about to be made. Part III provides for settlement of rents and decision of disputes in cases where a settlement of land revenue is not being or is not about to be made. Part. II comes into op. ration after publication of the draft record of rights u/s 103A, Sub-section (1). Part III corner into operation after the final publication of the record u/s 10iA, Sub-section (2), but. in neither case is any provision directly made for ascertaining the prevailing rate-Under Part II, however, by Section 104, the Revenue Officer is authorised to Kettle fair and equitable rents for tenants of every class and to prepare a settlement rent roll. u/s 104A(i)(c) where the landlord and the tenant do not agree as to the fair and equitable rent the Revenue Officer may, if the circumstances are, in his opinion, such as to make it practicable, prepare a table of rates showing for any local area, estate, tenure or village or part thereof or for each class of land in any local area, estate, tenure or village or part thereof, the rate or rites of rent fairly and ejuitably payable by tenure-holders arid riyats and under-raiyats of each class and may settle and record all or any of the rents on the basis of such rates in the manner therein if for described. It is also provided in the same Section that the Revenue Officer may settle the rents by maintaining the existing rentals recorded in the draft record or by enhancing or reducing such rentals and in making such settlement regard shall be had to the principles laid down in Sections 69, 27 to 36, and other sections. Sections 27 to 36 no doubt show how the prevailing rates may be arrived at. In the succeeding Sections provision is made for the publication of a draft settlement, rent; roll and for determination of objections thereto by the Revenue Officers and for the final publication of the settlement rent roll after confirmation by the confirming authority. Section 104H gives liberty to any per on a aggrieved by an entry of a rent settled in a settlement rent roll or by an omission to settle a rent for entry in such settlement rent roll to institute a suit in a Civil Court within six months of the date of the certificate of final publication of the record-of-right, and the Court has power to settle a fair rent in such cases being guided by the rents of other tenures or holdings of the same class comprised in the, same settlement rent roll. Somewhat similar provision are made in Part III of Chap, X for settlement of fair and equitable rent upon the application of the landlord or the within two months of the date of the certificate of the final publication of the record of rights. But in neither of these cases is any express provision made in terms for determining the prevailing rate. I can only suppose, however that by using the expression prevailing rate in Section 31B, it was intended to refer to the table of rates prepared by the Revenue Officer under Part 11 of Chap X. If this is the correct interpretation of Section 31B, it then provides: that "it," that is, the prevailing rate, "shall not be liable to enhancement save on the ground and to the extent specified in Section 30, Clause (b) and Section 31." Here again some difficulty arises as to the interpretation of this part of the clause. It seems hardly appropriate to speak about the enhancement of a prevailing rate of rent. The prevailing rate of rent in any particular village or local area is a question of fact and must depend upon the actual rusts existing in that area from time to time. The prevailing rate increases or diminished according to existing circumstances. The process is automatic. The prevailing rate is not enhanced in the sense in which the rent of an individual holding is enhanced, that is, by some act of the parties themselves or by the enforcement of some right. The existing circumstances no doubt may have to be determined by judicial enquiry but the prevailing rate automatically k creases or diminishes according to the existing circumstances and to say that it shall not be liable to enhancement except on the ground of an increase in the price of staple food crops without consideration of the actual rents existing appears to me to be tantamount to saying that the prevailing rate shall not be the prevailing rate. Again it is difficult to see how the prevailing rate of money rents can be enhanced merely on the ground of a rise in the price of crops. The price may rise but the rents may remain the same; unless the rents have increased the prevailing rate of money rents cannot increase whatever may be the price of food-crops. The Section does not say that the prevailing rate shall not be enhanced except on the ground of an increase in the rent in the village due to the rise in the price of staple food-crops, but merely that it, that is to say the prevailing rate, shall not be liable to enhancement save on the ground specified in Section 30, Clause (b), that is, on the ground that there has been a rise in the price of staple food-crops during the currency of the present rent. It seems obvious that the rise in the price of crops can have no effect on the prevailing rate of money rents unless these rent3 themselves have been increased. Applying the best judgment I can to the interpretation of this unhappily worded Section the intention appears to me to be that, when a prevailing rate, whatever may be the exact meaning of that expression in this section, has once been determined is stated in the section, the rate so found shall be deemed to be the prevailing rate unless it can be shown that the actual prevailing rate has risen by an increase in the rents in the village generally owing to a rise m the price of staple food-crops.

At the same time I am by no means confident that I have arrived at a correct solution of the intention of the section, but, applying the interpretation, which to the best of my judgment it appears to bear, it becomes necessary to consider whether on the facts found in the case, the Section is a bar to the Plaintiff''s claim for enhancement u/s 30, Clause (a) which reads as follows:

The landlord of a holding held at a money rent by an occupancy raiyat may, subject to the provisions of this Act, institute a suit to enhance the rent on one or more of the following: grounds (namely):

(a) That the rate of rent paid by the raiyat is below the prevailing, rate paid by occupancy-raiyats for land of a similar description and with similar advantages in the same village or in neighbouring villages, and that there is no sufficient reason for his holding at so low a rate.

Section 31 and 31A lay down certain Rules to be followed in determining what is the prevailing rate and provide inter alia that regard should be had to the rates generally paid during a period of not less than three years before the institution of the suit. Section 31A which has not hitherto been applied to this province also lay3 down a Rule by which the prevailing rate for any class of lands may be ascertained in a case coming u/s 30, Clause (a). These Sections as well as Section 31B must be read together with Section 30 and the expression prevailing rate as used in Section 31B must, I think, have the same meaning as the same expression when used in Section 30, that is to say, it must be the prevailing rate paid by the occupancy raiyats for land of a similar description and with similar advantages in the whole of the village or in neighbouring villages. It follows therefore that in ascertaining the prevailing rate regard must be had to the rents paid by occupancy-raiyats holding similar lands in the whole of the village or in neighbouring villages and not to the rents paid by some of them only.

The learned Subordinate Judge was of opinion that when the rents of the Taufir lands were settled under Part II, of Chap. X of the Act in 1903 a prevailing rate within the meaning of Section 31B had been ascertained by the Settlement Officer. On reference, however, to the proceedings which took place at that time it does not appear to me that his opinion was justified. What took place at that time appears to have been as follows. The Settlement Officer found that the lands were divided generally into two classes which he describes as inland and diara areas. In the former there existed some 12 different rates varying from Rs. 4-2-0 to 6 annas. These he reduced to one rate only, namely, Rs. 3. In the latter he found 8 rates varying from Rs. 3 to 6 annas. These he reduced to 3 rates, namely, Rs. 2, Rs. 1-8-0 had 8 annas and assessed the rents of the different descriptions of land accordingly. In assessing these rates he did not take into account the rate of rent paid by raiyats holding lands of similar description in the village in the Zapti estate. The rates found by him were based solely upon a consideration of the rents paid by the tenants of the Taufir estate. It cannot therefore be said that these rates represent the prevailing rate paid by occupancy raiyats of lands of a similar description and with similar advantages in the same village-Still less can it be said to represent the prevailing rates paid for lands of a similar description in neighbouring villages. It was also urged before us on behalf of the Appellant that it is notorious that the rates paid by the tenants of a Government mahal are, as a rule, lower than those paid to an intermediate proprietor holding from Government. No evidence, however was called to our attention in support of this argument, and it is not a matter of such notoriety that we would, in my opinion, be entitled to take judicial notice of it in the absence of any evidence to support it.

In contrast to this method of arriving at a rate of rent payable by the tenants of the Taufir estate our attention was urgently drawn to the manner in which the rates of rent payable by the tenants of the Zapti estate were ascertained by the Settlement Officer shortly afterwards in proceedings under Part. III of Chap. X. In assessing the rates of rent payable by the tenants of the Zapti estate under Part HI of Chap. X very elaborate investigations took place. The rents payable by tenants of lands of a similar description not only in the Taufir lands of the same village but also in all the surrounding villages over a large area were taken into consideration and a rate of rent for the different classes of and was then arrived at and the rents settled accordingly. The rates of rent so arrived at formed the subject of appeal to the special officer and subsequently to the High Court with the result that in each case the rents so found were affirmed. It was also found by the Munsif that the Taufir lands were not inferior to the adjoining Zapti lands but were similar in every respect and had similar advantages. This finding was not disturbed by the Officiating Subordinate Judge on appeal. The Munsif found that the rates payable by the tenants of the Zapti lands should be taken as the prevailing rates of the Taufir lands of a similar description and with similar advantages and, with certain exceptions with which we are not now concerned, decreed that the rent of the holdings in suit should be enhanced according to the rates given in Schedule 1 of the plaints which represented the rents payable by the tenants of the Zapti lands. He was also of opinion that the rates found with regard to the Taufir lands in 1903 were not the prevailing rates within the meaning of Section 31 B. The learned Officiating Subordinate Judge was of opinion that the trial Court''s view of the effect of Section 31 B was a very narrow one and that the Settlement Officer acting under Part II of Chap. X of the Act had in fact settled fair and equitable rents with reference to the quality of the land at the rate already existing. He does not deal in terms with the fact that the rents payable by tenants in other parts of the village for lands of a similar description were not taken into account but says: "When a fair and equitable rent was going to be settled it cannot be urged with any show of reason that the prevailing rate was not taken into consideration. I think a fair arid equitable rent and the prevailing rate aw hardly distinguishable because one seems to be impossible to be found out without having regard to the other, but because the Revenue Officer did not say in express terms that he settled a fair and equitable rent prevailing regard to the prevailing rates in the village it cannot be urged with any force that no prevailing rate was taken into account." With great respect to the learned Officiating Subordinate Judge. I think he laid too much stress upon the fact that the Settlement Officer purported to find what he considered a fair and equitable rent. What he in that found was that the rents paid by the tenants of the taufir lands were divided into a number of rates. These he reduced in number and settled the rents by increasing some and diminishing others so as to reduce them more or less to the same level He did not take in to consideration at all the rents paid or payable by the tenants of the Zapti lands of a similar description in the same village or by the tenants of neighbouring villages, and, in my opinion, the prevailing rate within the meaning of Section 31 B, was not determined by the Revenue Officer on that occasion. The learned Officiating Subordinate Judge was also of opinion that the rates found, representing the prevailing rate under Part ill of Chap. X. of the Act did not necessarily represent the prevailing rate at the time of the suit and that there was therefore no evidence before him upon which the actual prevailing rate could be ascertained. We lwve not the evidence in detail before us and Tarn not sure how far the learned Officiating Subordinate Judge was justified in concluding that there was not inefficient evidence on the record to enable the Court to ascertain the actual prevailing rate. It would appear that the rates found in 1903 both in respect of the Taufir lands and the Zapti lands were before the Court and it appears to have been assumed that the rates then fixed had continued up to the date of the suit. If, however, the learned Judge was not satisied that this was so, I think he ought to have remanded the case to the trial Court for evidence upon this point.

Although I consider that on the main question the learned Munsif was right and lie learned Officiating Subordinate Judge was wrong I am not satisfied that the Plaintiff is entitled to enhancement according to the rates given in Schedule 1 of the plaints. That schedule apparently takes no account of the rates payable by the tenants of the Taufir lands. In ascertaining the prevailing rate of the different descriptions of land account should be taken not only of the rates pa>able by the tenants of the Zapti land but also of the rates payable by tenants of similar lands in what was previously the Taufir estate and the Court in ascertaining the prevailing rate should proceed according to the method laid down by Mullick, J., in Brij Behari Singh v. Shea Sanker Jha [1917] 2 Pat. L.J. 124. If upon the evidence on the record it is impossible to arrive at the prevailing rate of rent then the Court should issue a commission for a local investigation as ordered in that case. I hope, however, that on further consideration it will not bFe necessary to take this course.

In the result, I think the decision of the lower Appellate Court must ie set aside and the cases remanded to that Court to ascertain the prevailing rates according to the principles above indicated and to find to what extent, if any, the Plaintiff is entitled to enhancement under 3 30, Clause (a) of the Bengal Tenancy Act. If on further consideration it should turn out that no case for enhancement is proved by reason of the present rents not being below the prevailing rates then the Subordinate Judge''s order remanding the cases to the Munsif to ascertain whether the Plaintiff is entitled to enhancement tinder Section 30. Clause (b) will take effect. The Plaintiff is entitled to the costs of these appeals against the respective Respondents who hare appeared. The order for costs passed by the Officiating Subordinate Judge will stand as made by him.

Kulwant Sahay, J.

I agree.