Ramphal Singh and Another vs Lalji Singh and Others

Dawaon-Miller, C.J.—The appellants as landlords sued the defendants Lalji Singh and Gauri Singh for rent in respect of a holding measuring 12''31 acres for the years 1326 to 1329 F., claiming a rental of Rs. 92 omitting annas and pies. The defendants, on the other hand, contended that the rental payable by them and which they had paid since the year 1909 when they purchased the property was only Rs. 72 again omitting odd annas and pies. It appears that in the year 1919 there was a partition of the estate in which this holding is situated and the plaintiffs obtained a certain patti into which the 12''31 acres of the defendants'' holding fell. The contention of the plaintiffs was that holding had originally consisted of parts of three other holdings belonging to the predecessors-in-interest of the second party defendant from whom the first party defendants purchased their interest in the year 1909; that if a proportionate part of the rental of the original holdings was taken then these 1231 acres would show a larger rental at all events than Rs. 72, and even If they were not able to establish the sum of Rs. 92 which they claimed, the sum of Rs. 87 which, was taken in the batwara proceedings as the rental of the lands in question ought to be awarded to them.

It was never suggested either in the plaint or as far as can be seen before the trial Court or before the Additional Subordinate Judge on appeal that there had been at the batwara of 1919 any proceedings u/s 81, Estates Partition Act, which would have the effect of splitting up the original holdings out of which it is said these 12''31 acres were carved some time in or before the year 1909. If such proceedings had been taken and the tenants had been served and were parties thereto them it might well be, as was decided in the case of Satish Chandra Chatterjee Vs. Kali Charan Choudhury, , that the partition proceedings u/s 81, Estates Partition Act, cannot be treated as a nullity even though the decision there come to as to the amount of rent payable was not based upon the actual facts of the case, and that the tenants when they were sued for rent were not able by way of defence to the suit to challenge the findings of the Deputy Collector u/s 81 in the absence. of all the other parties to the partition.

It has not been shown, however, in the present case that there was any proceeding at all u/s 81. The batwara papers were referred to in the trial Court, but no proceedings under that particular section were disclosed. The result, therefore, is that the most that can be assumed with regard to the batwara is that proceedings took place under Chap. 6 and that u/s 46 the rent was taken by the Deputy Collector for the purposes of the partition as Rs. 87 for the holding in question. Under that section the Deputy Collector is required to ascertain and record certain particulars and amongst others the rent then payable for all rent-paying land: (1) as stated by the landlord; (2) as stated by the tenants; and (3) as taken by the Deputy Collector for the purposes of the partition. It may be assumed that the rent as taken by the Deputy Collector for the purposes of the partition was the sum of Rs. 87. This, however, is not so far as I am aware, a decision in any way binding upon the tenants and no section of the Act has been drawn to our attention in support of any such contention, and I apprehend that in a case u/s 46 the Deputy Collector takes the rent which he considers to be the accurate rent or as near the accurate rent that can be ascertained and bases his partition upon that, but I am not aware of any provision in the Act which precludes either the tenant or the landlord here after from contending that the real rent payable by the tenants is a different figure. It is not a, case of a holding being split up and different portions allocated to different landlords with proportionate rent as would be the case in proceeding u/s 81.

In these circumstances the Munsif at the trial, although the defendants produced certain rent receipts covering a number of years since 1909 when they purchased the property, showing payment of a rental of Rs. 72 considered that these rent receipts were not sufficient to establish the actual rent they were paying. He thought that they varied from time to time, as in fact they did, and in the result he took as the proper rent that found by the batwara officer, namely Rs. 87.

When the matter went before the Subordinate Judge on appeal he went more carefully into the evidence in the case and having considered the rent receipts produced by the tenants he found that although those rent receipts did in fact vary in later years that was due to the fact that they had acquired an additional area and the additional rent corresponded proportionately with the additional area acquired. He was, therefore, satisfied in the absence of any evidence by the landlords that the actual rent paid in 1909 was the sum of Rs. 72 as claimed by the tenants. It also appears that in the year 1911 these tenants wore recognized by the landlord Ram Sahai Ram, the predecessor-in-interest of the present plaintiffs and he accepted the rent from them as though it were a separate holding.

The question which had to be determined, it seems to me, was purely one of fact, what was in fact the rent payable by these tenants. That question was determined by the lower appellate Court in favour of the tenants, and in the result I think that the findings of fact cannot be challenged in second appeal unless it be shown that there was in fact some proceeding under the Estates Partition Act which would have the effect of binding the tenants to pay a larger sum unless they took the proper proceedings prescribed in the Act itself to set aside that finding.

In the present case, however, as I have already stated in the opening part of this judgment, it is not shown that any proceedings at all were taken u/s 81, Estates Partition Act; and in proceedings taken in pursuance of Section 46, although the Deputy Collector might take as the basis of his partition a certain figure as to rent, that would not, I think, be binding upon the tenants and they might challenge it in proceedings such as the present. Probably the reason why no proceedings were taken u/s 81 was that since the year 1911, at all events, the defendants had been paying Rs. 72 in respect of a specific area and even if that was made up of portions of other holdings it would appear that from that year this particular area had been treated by the landlord as a separate holding, and, therefore, there was no longer anything to be done u/s 81, the holding having been treated as a separate one and not as portions of three other holdings which for the purposes of partition were going to be split up.

In my opinion the question has been concluded by the finding of fact of the lower appellate Court and this appeal must be dismissed with costs.

Ross, J.

I agree.