Rup Narain Pandey and Another vs Sheo Sagar Tewari and Others

Manohar Lall, J.—This is an appeal by the plaintiffs arising out of a suit for recovery of bhaoli rent for the plaintiffs'' share for the years 1339 to 1342 Fasli in respect of the holding situated in village Ahraw in which the plaintiff is a rehandar by virtue of a rehan created in his favour in the year 1916. The defence is tjhat the lands are bishunprit rent-free lands and no rent is payable to the maliks on the basis of an unregistered danpatra deed bearing date: 25th Chait 1326, Fasli, corresponding to 1919, and since then the defendant is in possession of the suit lands without payment of rent to the maliks. It will be noticed that the lands are alleged to have been created free from the liability to pay rent after the rehan was executed. The trial Court granted a decree to the plaintiffs fixing the quantity of paddy at the rate of 10 maunds a bigha and paira keraw at the rate of l� maunds a bigha on the sale rates given by the plaintiffs. Damages were also awarded at 6� per cent, with future interest at six per cent. The defendant then appealed to the learned Subordinate Judge of Arrah who rightly held that the claim for the years 1339 to 1340 was barred by limitation. The learned Subordinate Judge however held that the lands were rent-free. Hence the appeal before me.

It was admitted before me that no valid gift could be founded on an unregistered document and that the unregistered deed of danpatra was inadmissible in evidence. The learned Judge himself came to the same conclusion but he relied upon a number of cases which he has quoted in the judgment for the proposition that the unregistered deed could be used in evidence for a collateral purpose. That is undoubtedly correct, but the learned Judge has used the unregistered deed not for a collateral purpose but for the very purpose for which the statute forbids the user. The only col. lateral purpose to which this unregistered deed could be used was to show that the defendant entered into possession in 1326; but this is not denied. I fail to understand how the unregistered danpatra could be used to create a title in favour of the defendant nor does the fact that the defendant has not paid any rent for more than 12 years create a prescriptive right in the defendant to hold the disputed land as rent-free.

In the present case, it is unnecessary to consider this matter any further because upon the finding that the plaintiff was a rehandar and therefore in possession from 1916, the mortgagor had no right whatsoever left in him to create, even if he did want to create a right in the defendant to hold the land rent-free as a tenant. Such a right could be given only by the mortgagee in possession but even that would not be binding against the mortgagor unless the settlement was made bona fide in the ordinary course of management. For these reasons, the decision of the learned Subordinate Judge cannot be upheld. The plaintiffs will be entitled to a decree for the bhaoli rent for the years 1341 and 1342 Fasli only. Regarding the quantity of produce, the trial Court, as already pointed out, had'' fixed the rate of paddy at 10 maunds a bigha and paira keraw at 1� maunds a bigha. Instead of remanding the case and putting the parties to unnecessary harassment, I have, on hearing the parties, decided that for the years in suit, the quantity of paddy should be fixed at 6 maunds a bigha and paira keraw at 1� maunds a bigha. The sale rates will be as fixed by the trial Court. The decree will be prepared accordingly.

The learned advocate for the respondents took a preliminary objection that no second appeal was maintainable because the amount of rent for the years in suit was far-below Rs. 100. He relied upon Section 153, Bengal Tenancy Act. A large number of cases were cited before me but I am unable to agree with this contention. The question between the parties in the present case was as to the amount of rent annually payable for the holding. The plaintiffs asserted that a certain amount of rent was due and the defendants asserted in reply that no amount of rent was due because it was rent-free. In this view, the case appears to fall under: Section 153, Bengal Tenancy Act, which, in such a state of affairs, does not bar a second appeal. But, it was argued that the question here is not as to the amount of rent but as to the liability to pay rent. Now, if that is so, it makes no difference, because then the question would appear to be a question as to title to hold the land free from liability to pay rent. A similar question was decided by a Division Bench of this Court in Babua and Others Vs. Musammat Sarli, In that case the plaintiff had brought a suit for rent, the value of which was less than Rs. 100 against the defendants on the ground that she, the plaintiff, was a raiyat of the land and that the defendants were her under-raiyats and liable to, pay rent to her.

The defendants denied that they were under-raiyats under the plaintiff but pleaded that their father had purchased the land from the heir of the admitted previous raiyat of the land and had been holding the land as the raiyat of the landlord. In other words, they denied liability to pay rent. The Courts below concurrently held that the plaintiff was in possession for a large number of years and that the defendants failed to prove that they ever held the land as raiyat of the landlord. In these circumstances, it was argued that no second appeal was maintainable. The learned Chief Justice pointed out that:

It seems to me that the Courts below decided a question of title to land between parties having conflicting claims thereto and that a second appeal did lie to this Court.

In another case which was cited on behalf of the appellants reported in Sabaratulla Sheikh Vs. Manikjan Bibi, the identical question which arises in the present case has been decided. The learned Judges in that case pointed out that:

Where the Court will have to decide whether rent payable is a certain amount, or in the alternative, nothing at all, the question is of the amount of rent payable annually by the tenant, and as such second appeal is competent.

In another case decided by this Court reported in Rameshwar Singh Vs. Sheikh Wazul Haque, a Letters Patent Bench of this Court presided over by the learned Chief Justice pointed out that:

Where, in defence to a suit for rent, it is pleaded by the tenant that the rent claimed by a landlord in respect of fruit trees is not payable, the question is one relating to the amount of rent payable and second appeal is allowable.

For these reasons the appeal is allowed and the decision of the trial Court is restored subject to the variation pointed out above. The plaintiffs will be entitled to interest till the date of realization and proportionate costs throughout.