Sarada Charan Maiti vs Noni Lall Kower

Harries, C.J.—This is a Letters Patent Appeal preferred by Defendants from a judgment and decree of a single Judge of this Court affirming a decree of the lower appellate court which was made in favour of the Plaintiffs.

To appreciate the point at issue it will be necessary shortly to set out the facts which gave rise to the litigation. One Dilwar Hossain, Plaintiff No. 2, held certain land directly under Government as an occupancy raiyat at a rental of Rs. 54-3-0, the area of land being 9-4 acres. Dilwar Hossain also held another jama, under Fakir Chand Hazra and others as an occupancy raiyat paying a rental of Rs. 17 for an area of 1 92 acres. Fakir Chand Hazra and others were tenure-holders under Government holding the tenure free of rent.

On March 2, 193.1, Defendant No. 1 Sarada and one Akhil deceased, father of Defendants Nos. 2 to 5 and the husband of Defendant No. 6, executed a kabuliyat in favour of Dilwar Hossain in respect of half the land of both the interests held by Dilwar Hossain. In the kabuliyat it was stated that the rent payable by the tenants executing the kabuliyat was Rs. 57-1-6. On the same date another kabuliyat was executed by one Sagar deceased, father of Defendants Nos. 7 to 10 and husband of Defendant No. 11 and one Adhar the deceased father of Defendants Nos. 12 to 14 and husband of Defendant No. 15 and Ashu, Defendant No. 16 and Purna, Defendant No. 17, in favour of the Plaintiff Dilwar Hossain. This kabuliyat related to the other half of the land held by Dilwar Hossain, mentioned earlier. The executants of the kabuliyat also agreed to pay Rs. 57-1-6 rent for this tenancy. It will be seen, therefore, that the two interests of Dilwar Hossain were as it were combined by him and split into two and each half let separately. It is to be observed, however, that each half contained land covered by the two tenancies of Dilwar Hossain.

On June 12, 1935, the interest of Dilwar Hossain in respect of the jama held by him paying a rent of Its. 54-3-0 was sold-in execution of a certificate and was purchased by Plaintiff No. 1. Plaintiff No. 1 thus became co-sharer landlord with Dilwar Hossain in respect of both the tenancies created by the two kabuliyats, as each of those tenancies covered portions of the lands comprised in the two original holdings of Dilwar Hossain.

On March 31, 1937, the record-of-rights of this area was published and in the record-of-rights it appears that the lande comprised in both the kabuliyats are treated as one holding paying a rent of Rs. 57-2-0. Plaintiff No. 1, who as I have pointed out, had purchased the holding that Dilwar Hossain held direct from Government, brought this suit on August 10, 1942, for a declaration that the Defendants Nos. 1 to 6 held a jama under him and the Plaintiff No. 2 at a rental of Rs. 57-1-6 and that the Defendants Nos. 7 to 17 held another jama under him the Plaintiff No. 2 at a rental of Rs. 57-1-6. The Plaintiff''s case was that the entry in the record-of-rights showing a rental of Rs. 57-2-0 in respect of both holdings was erroneous.

The Defendants raised a number of defences. They alleged that there was and had been only one holding at a jama of Rs. 57-2-0. They further alleged that the kabuliyats were executed under undue influence and coercion and that the rent claimed by the Plaintiff was in excess of that permissible by the Bengal Tenancy Act. In the alternative, it was pleaded that the rent Rs. 57-2-0 had been fixed u/s 104 and the succeeding sections of the Bengal Tenancy Act and that as the suit was not brought within six months from the final publication of the record-of-rights the suit was barred by reason of Section 104H(2) of the Bengal Tenancy Act.

The trial court found in favour of the Defendants and dismissed the suit in its entirety. On appeal, the learned District Judge held that the settlement of rent, namely, Rs. 57-2-t) for this jama was not made u/s 104 of the Bengal Tenancy Act. In the view of the learned District Judge the revenue officer had no jurisdiction to settle the rent at all and therefore, the period of limitation provided by Section 104H(2) could have no application and the suit was within time.

This view was upheld by Sen J., who heard the Second Appeal and he gave leave to appeal under the provisions of the Letters Patent.

Only one point has been taken before us and that is that Sen J. was wrong in holding that the revenue officer had no power to settle the rent of this holding at Re. 57-2-0 u/s 104 of the Bengal Tenancy Act.

Sen J. has pointed out that with respect to the holding of Dliwar Hossain under Fakir Chand Hazra no revenue could be assessed. Sen J. was, therefore, of opinion that as that land could never be made the subject-matter of an assessment of revenue any tenancies of that particular land were not covered by Section 104(a) and therefore, no rent could be settled for such tenancies by the revenue officer.

The question which has to be decided is whether the powers of a revenue officer given by Section 104 are confined to the actual land which is subject to present assessment of land revenue or to assessment in the near future The terms of the section are as follows:

In every case in which a settlement of land revenue is being, or about to be made, the revenue officer shall, after publication of the draft of the record-of-rights u/s 103A, Sub-section (1),--

(a) settle fair and equitable rents for tenants of every class....

The view of the learned single Judge was that the revenue officer could only settle fair and equitable rents for the tenants of the land which was the subject-matter of a present settlement of land revenue or which was to be the subject-matter of the settlement of land revenue in the near future. It is quite clear that some limitation must be given to the tenants of every class referred to in Sub-section (a) of Section 104. The Respondents contend that tenants in Section 104 Sub-section (a) can only mean tenants of land which was then the subject-matter of a settlement for land revenue or tenants of land about to be so settled.

The Appellants on the other hand have contended that Section 104 must be read with Section 101, Sub-section (1) of the Bengal Tenancy Act. Section 101(2) deals with orders for survey and preparation of the record-of-rights. The sub-section is in these terms:

The Local Government may, in any case if it thinks fit, make an order directing that a survey be made and a record-of-rights be prepared by a revenue-officer, in respect of all lands in any local area, estate or tenure or part thereof.

The order is made with respect to an area and the Appellants contend that Section 104 must mean that in every case in which a settlement of land revenue is being made or about to be made of any land in a local area covered by Section 101, the revenue officer can settle fair and equitable rents for all tenants of all land within that local area whether the particular land is or is not being assessed or likely to be assessed to land revenue.

It appears to me that the contention of the Appellants would lead to strange results. It may well be that in a local area for which a record-of-rights has been ordered a good deal of land could not be assessed to land revenue. It might be permanently settled or revenue-free land; nevertheless if the Appellants'' argument is well founded the revenue officer could settle the rents of not only the tenants of a revenue-paying land, but also of tenants of the non-revenue-paying land or of the land for which assessment of revenue could not be made.

It is natural that the revenue officer should have power to settle fair and equitable rents when he is settling the revenue; unless the person who is paying a revenue is assured of a reasonable income from his tenants Government will suffer from failure of the proprietor to pay revenue. Further, it is in the interest of Government to see when settling revenue that tenants are not being compelled to pay more as rent than they should, having regard to the revenue fixed by the revenue officer. These are reasons why the revenue officer is empowered to settle fair and equitable rents of land in respect of which he is settling or is about to settle the revenue. On the other hand there are no reasons why he should be entitled of his own motion to settle rents in respect of land which is not the subject-matter of a settlement of revenue. Where land is not being settled to land revenue rents can be fixed by proper applications made under Sections 105 and 106 of the Bengal Tenancy Act. Section 104 authorises the revenue officer of his own motion to fix fair and equitable rents and only when land revenue is being assessed or about to be assessed. It appears to me that the only possible construction of Section 104 is that the revenue officer can fix fair and equitable rents in respect of the land which he is or is about to assess to land revenue. The fact that the revenue officer is assessing or is about to assess some land in the local area for which a record-of-rights is being prepared, cannot in my view give the revenue officer a right to fix fair and equitable rents for other land in such area which is not being made the subject-matter of an assessment of revenue. In my view, the view of the learned single Judge is correct and that being so, the assessment could not be said to have been made u/s 104 of the Bengal Tenancy Act. As I have said, part of the land covered could never be the subject of assessment to revenue and that being so the revenue officer could not assess a fair and reasonable rent for such land. He assessed a fair and reasonable rent for a holding composed partly of such land and that being so, his assessment was not u/s 104 and was wholly without jurisdiction. The special period of limitation prescribed by Section 104H(3) could not, therefore, apply and the courts were right in holding that the suit was within time.

It had been contended that the rent so fixed could not be challenged by reason of Section 104J of the Bengal Tenancy Act which provides:

Subject to the provisions of Section 104H, all rents settled under Sections 104A to 104F and entered in a record-of-rights finally published u/s 103A, or settled u/s 104C, shall be deemed to have been correctly settled and to be fair and equitable rents within the meaning of this Act.

It is pointed out by the learned Judge that the rents could not be settled under the section concerned and therefore Section 104J had no application.

In my view, the decision of the learned single Judge cannot be assailed and I would dismiss this appeal with costs.

Sinha J.

I agree.