Sheo Prasad Singh vs Lal Babu and Others

Edward Chamier, C.J.—This appeal and Second Appeals Nos. 1145-1149 of 1913 arise out of suits brought by the plaintiffs-respondents as long ago as June 1910 for the recovery of arrears of rent for the years 1314, 1315, and 1316 Faslis. The greater part of the claim in each case was allowed by the Subordinate Judge by his judgment dated September 21st, 1911. The principal defendant appealed to the District Judge who on May 29th, 1912, affirmed the decision of the Subordinate Judge in each case with a slight variation. Great difficulty was experienced in drawing up the decrees in the District Court and the result was that the appeals to the Calcutta High Court were not filed until March 31st, 1913. Further delay was caused by the death of several respondents. The result is that these appeals have come on for hearing in this Court more than 6 1/2 years after the suits were filed in the Court of the Subordinate Judge.

The pleadings of the parties are voluminous and a large number of issues were fixed by the Subordinate Judge. I shall confine myself to the points which have been pressed in this Court.

The first point taken was that in respect of certain bhadai crops there should be a decree for rent at the rate of Rs. 4 per bigha and not for the landlords'' share of 4 pukka maunds per bigha. Upon this it is sufficient to say that the District Judge has given a decree for the landlords'' share of 4 pakka maunds per bigha only in respect of bhadai crops which, according to the Record of Rights, do not bear a cash rent.

The second point taken was that the Courts have allowed too large a sum on account of cesses. It was said that if, as has been done in this case, cesses are. decreed at the rate of half an anna in the rupee or 1 1/4 seer in the maund, the landlord may receive more than half of the amount which he had to pay to Government on account of cesses. It appears to me that the decree in this case is in strict accordance with Section 41, Sub-section 3 of the Cess Act, 1880, which provides that every cultivating raiyat shall pay to the person to whom his rent is payable one-half of the said road cess and public works cess calculated at the said rate or rates respectively upon the rent payable by him. The landlord has to pay to Government on account of the two cesses one anna on each rupee of the annual value. The cultivating raiyat has. to pay to the landlord half an anna in the rupee on account of the two cesses. In one year the landlord may receive from his tenants more than half of the amount which he had to pay to Government, owing to the value of the crops in that year being greater than the value as ascertained when the amount payable by the landlord to Government on account of cesses was fixed. In another year, however, the landlord may recover less than one half of the amount which he has to pay to Government. Section 41, Sub-Section 3, appears to me to make it clear that the amount payable by the raiyat to the landlord in each year on account of cesses is to be calculated on the amount of rent payable for that year. The learned Vakil for the appellant suggested, as I understood his argument, that in a case of this kind the Court should ascertain the amount payable by all the raiyats in the estate or tenure in the year in which the estate or tenure was valued under the Cess Act and should divide that amount between all the raiyats according to the rents payable by them or according to the areas of their holdings. Such a method is certainly not contemplated by the Cess Act and it is conceded that the amount payable by raiyats on account of cesses has always been calculated in the way in which it has been calculated in the present case.

The third point, taken was that the Courts below were wrong in treating the fard rewaj bhaoli as part of the Record of Rights and in presuming that the entries in the fard are correct. This question has been raised in several cases lately and several Judges of this Court have held that whether or not the fard rewaj bhaoli is part of the Record of Rights to which a presumption of correctness attaches u/s 103 (b) of the Bengal Tenancy Act, the fard is admissible u/s 35 of the Evidence Act. In the present case the fard rewaj bhaoli was published u/s 103 (a) of the Bengal Tenancy Act as part of the Record of Rights. It appears that Revenue Officers engaged in preparing Record of Rights have found it impossible to enter all the required particulars in the space provided in the khatian and have, therefore, made the entries on a separate sheet of paper and have attached that sheet to the khatian and published it as part of the khatian. That is what, was done in the present case. It appears to me that in such circumstances the fard rewaj bhaoli should be treated as an integral part of the khatian. In any view of the matter the document is clearly admissible u/s 35 of the Evidence Act.

The fourth point taken was that where bhadai crops are grown and a cash rent is payable for them, no further rent is payable in respect of any other crops which may be grown on the same land during that year. Both the Courts below have rejected this contention and, in my opinion, they were right in doing so. It is quite clear from the fard rewaj bhaoli that the payment of a cash rent in respect of certain crops grown in the bhadai season does not relieve the tenant from liability for the payment of rent in kind in respect of other crops grown by him on the same land in that year.

The fifth and last point taken by the appellant was that, although the District Judge directed that the decree in each case should be for the land as shown in the malik''s khasra for the malik''s share of 5 pnkka maunds of paddy, 3 pakka maunds for the rabi, and 4 pakka maunds for bhadai crops other than those bearing a cash rent, the officer who prepared the decrees took the areas from the plaint and not from the malik''s khasra The plaintiffs-respondents concede that in this respect there are errors in the decrees as prepared by the District Judge. To this extent, therefore, the appeal in each case must be allowed and the decree corrected where necessary.

It was also suggested that a mistake had been made in converting kacha maunds into pakka maunds, that the decree assumed that the pakka maund is half as much again as the kacha maund whereas in this particular village the kacha maund is very little less than the pakka maund. If a mistake was made in this respect, it was made in the Court of first instance and the appellant should have raised the question in the lower Appellate Court, He did not raise it until after the draft decree had been prepared and the District Judge declined to consider it at that stage, saying that the point had not been argued before him. It is notorious that the kacha maund varies in different districts and even in different villages in a district. The difference between the kacha maund and the pakka maund is a question of fact which we cannot conveniently determine in second appeal. I agree with the District Judge that the question should have been raised in the lower Appellate Court and I would decline to consider it here. This disposes of all the points taken on behalf of the appellant.

The plaintiffs-respondents filed a cross-objection with reference to the rent allowed in respect of janora makai in 1316 Fasli. It is said that the District Judge was wrong in decreeing a cash rent for it, inasmuch as according to the fard rewaj bhaoli a cash rent is payable only in respect of certain crops grown at the bhadai season whereas the janora makai grown by the appellant in 1316 Fasli was grown out of season. The plaintiffs-respondents wish to recover rent in kind in respect of that janora makai. There is. however, no specific finding that that crop was grown out of season. The cross-objection, therefore, fails,

As the appeal has succeeded only with reference to the extent indicated above, the appellant should pay the plaintiffs-respondents costs of the appeal. The latter will pay the appellant''s costs of the cross-objection. This judgment will govern all the cases mentioned at the beginning of the judgment.