Ramji Ram vs Ramasre Raut

Dawson Miller, C.J.—This is an application on behalf of the plaintiff u/s 115 of the CPC and Section 107 of the Government of India Act asking us to set aside an order of the Subordinate Judge directing a commission to issue for a local investigation to arrive at the prevailing rate of rent of the mauza. The suit out of which the application arises was instituted by the landlord against a number of his tenants in mauza Mangarpal claiming enhancement of tent u/s 30 of the Bengal Tenancy Act. Other reliefs were claimed in the plaint but these are not material for present purposes.

The Munsiff before whom the case came for trial held that the plaintiff was entitled to enhancement u/s 30A of the Bengal Tenancy Act on the ground that the rents were below the prevailing rates of rent of lands of a similar description and with similar advantages in the same village and he assessed the rents accordingly.

The Subordinate Judge on appeal held that the claim u/s 30(a) was barred by the provisions of Section 31B and dismissed the claim u/s 30(a) but directed that there was ground for enhancement u/s 30(b).

The plaintiffs being dissatisfied with that decision appealed to this Court. This Court on second appeal held that the claim u/s 30(a) was not barred and remanded the case to the Subordinate Judge to determine whether the rates of rent paid were below the prevailing rate of lands of a similar description and with similar advantages in the same village, proceeding according to the method laid down in Brij Behari Singh v. Sheoshankar Jha (1916) 2 P.L.J. 124. We were not satisfied that the Munsiff in assessing the rents had proceeded upon a proper basis because he had taken no account of the rates ''payable by the tenants of what are known as the taufir lands but had only taken into consideration the rates payable in what are known in this village as the zapti lands. We accordingly directed that in ascertaining the prevailing rates of the different descriptions of land account should be taken not only of the rates payable 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. We added a further direction that if upon the evidence on the record it should be impossible to arrive at the prevailing rates then the court should issue a commission for a local investigation.

The Subordinate Judge on remand considered that there were not materials on the record to enable him to ascertain the prevailing rates of lands of similar description in the mauza and ordered a commission to issue for a local investigation. The present application is made in objection to that order.

The grounds upon which the learned Subordinate Judge based his decision were (1) that the khatian of Raghunath Tola which it was said formed a part of the village had not been included and therefore there was no evidence before the court of the rates prevailing in that part of the mauza relating to lands of similar description to those which it was sought to enhance, (2) that although it was admitted that the zapti and taufir lands in each ckakla of the same description were of similar quality and of similar advantages and productiveness still there was nothing to show that this was so at the present moment, and he considered that the state of affairs existing in 1903 when survey was made and certain rents assessed might have altered, (3) he compared the rents of the diara lands, as existing, with the rents of the karari lands and pointed out that in some cases the rents of the former were less than the latter although their productiveness in 1920 was equal or greater. From this he deduced that what is considered an inferior block yields more at present than that which is considered a superior block. He therefore concluded that lands of one description ought not to be compared merely with lands of a similar description according to the blocks in which they were at that time entered. I will deal with each of these points in turn."

With regard to Raghunath Tola this was a small tola some three miles away from what is now known as mauza Mangarpal. It appears to have formed a part of the mauza before the year 1903 but if it still appertains to this mauza it does so only in name and, assuming that it still forms a part of the mauza, and the defendants insist upon having the rates of rent in that tola before the court then they may have an opportunity of producing the khaticm for that tola within a reasonable time to be fixed by the Judge. This, however, does not require a commission for the purpose. But before the defendants are given an opportunity of producing the khatian for that tola it must be shown clearly that it does form part of the village as defined in Section 3 of the Bengal Tenancy Act. Whether it is so or not we are not in a position at present to say. It was contended on behalf of the Petitioner that it no longer formed a part of the village as defined in Section 3 of the Act.

With regard to the second point this is the very matter which was the subject of controversy at the trial before the Munsiff in the present suit. The learned Subordinate Judge seems to assume that the evidence relates to the year 1903. In this, however, he is in error. The evidence related to the condition of affairs existing at the time of suit. The findings on this question are emphatic and conclusive that the lands of a particular chakla in the taufir lands were in every respect similar to lands of the same chakla in the zapti lands and further that the lands within one chakla whether zapti or taufir are similar to one another in all respects and have got similar advantages. These were the very questions which were in controversy in the suit and it can no longer be contended that lands in karari, for example in chakla A or B, whether zapti or taufir, are in any sense different, and similarly with regard to diara lands those in each chakla are found to be now, as in 1903, similar in every description.

With regard to the third point the learned Judge was impressed by the fact that some diara lands although rated lower than karari lands were equally productive or even more productive than the latter and from this he considered that a fair basis of comparison could not be obtained by merely comparing the rates of the lands of each description. The answer to this is to be found in the fact that at the time of the settlement in 1903 the same phenomenon existed and was recognised, but the diara lands were rated somewhat lower because as the Assistant Settlement Officer pointed out that "It is an admitted fact that the tenants of lands in the diara block are generally speaking exposed to larger risks than those holding lands in the karari portion. The rent rates for the diara portion should be therefore lower than those of lands of similar, productive powers in the karari blocks." There is therefore this general distinction between these two classes of land which presumably exists to the present day. Had there been any recent change it was for the defendants at the trial to give evidence on the matter but they failed to do so. The presumption therefore is that the same considerations apply and that they should not be allowed now to go into matters which it was their duty to have raised before the Munsiff at the trial. The karari lands must be compared with karari lands and the diara lands with diara lands whether in taufir or zapti. The only contention raised at the trial was between zapti and taufir and there was -never any suggestion that the diara and karari lands had changed their respective values. In my opinion the reason given by the learned Judge are, with all respect to him, based upon considerations which have no real force in the present case.

The only question is whether we should interfere in revision or under our powers of superintendence to prevent what, in my opinion, would be a calamitous waste of time and money if an enquiry on the lines suggested by the learned Subordinate Judge were to take place. It would, I consider be not only fruitless but would be determining the rights of the parties upon an improper basis and would in suitably and unnecessarily prolong a litigation, which has already occupied several years, and cause irreparable loss. I have no doubt that we ought to interfere to prevent such a calamity. The learned Subordinate Judge must decide the rents upon the materials on the record subject to the right of the'' defendants, if so advised, to produce the hhatian of the Raghunath Tola assuming that that tola still forms a part of the village as defined in Section 3 of the Act. In arriving at the prevailing rates he will compare diara lands with diara lands of the same class and karari lands with karari lands of the same class. If he should, on ascertaining the prevailing rates of each class, find that a case for enhancement is made out then I am not sure how far the court has power to make the decision retrospective; but in the present case I think that it would be a hardship upon the tenants that any rates which should be found in excess of the rates which they now pay should be retrospective, that is to say, from the date of the suit, and in any case the learned Subordinate Judge has power u/s 36 of the Act to make an order which will bear less hardly upon the tenants. This, of course, is a matter for his discretion. I merely indicate what my own view would be in dealing with a case of this sort which has now lasted for a long time. I consider that it would be manifestly unfair in a case which has been prolonged like the present to order any enhancement of back rents, that is to say, rents from the commencement of the suit. The ordinary course is no doubt laid down in Section 154 of the Bengal Tenancy Act. The costs of the proceedings before the Subordinate Judge which he kept for future determination will be decided by him when he has dealt with the case according to the directions which have been given. The order for the costs of the present application will be that each party will bear his own costs.

Foster, J.

I agree.