Sib Sahai Lal and Others vs Bijai Chand Mahtab

Mullick, Ag. C.J.

The plaintiff brought 47 suits against different tenants for arrears of rent for the years 1327, 1328 and 1329 F.S. He also at the same time claimed additional rent for excess area u/s 52, Ben. Ten. Act, alleging that by a measurement made in the course of partition proceedings in 1910 and 1911 it was found that the area in the possession of the tenants was in excess of the area for which rent had been previously paid. He also claimed an enhancement u/s 30(b) on the ground that there had been a rise in the average local prices of staple food crops. He also claimed enhancement u/s 30(d) on the ground that the lands had been improved by the fluvial action of the river Kosi.

Three suits were compromised and one was decreed ex parte. In the remaining 43 cases the Munsif disallowed the prayer for enhancement u/s 30(d), but he allowed, in a modified form, the prayer for enhancement u/s 30(b). He also allowed the claim u/s 52. He made decrees against the tenants in accordance with these findings.

Thereupon the tenants in 35 cases appealed to the District Judge. The appeals were heard by the Subordinate Judge whose decision was as follows:

(a) The learned Subordinate Judge affirmed the Munsif''s decree for enhancement on the ground of a rise in the price of food-grains.

(b) He affirmed the Munsif''s finding that the quality of the land had not been shown to have improved and his decree, dismissing the claim u/s 30(d), Ben. Ten. Act.

(c) He affirmed the Munsif''s finding that the standard of measurement was a lugga of 6 and 1/2 cubits.

(d) Disagreeing with the Munsif he found that the tenancies which according to the evidence, have existed for a period of 700 years were not created after measurement, and he modified the Munsif''s decree and allowed an enhancement u/s 52 only in some of the cases.

As the learned Subordinate Judge''s judgment seems somewhat obscure at first sight, it is necessary to examine it with reference to the pleadings and the judgment of the trial Court. Now in the plaint the plaintiff distinctly makes the case that the mauzas from time immemorial have been settled with tenants after proper measurement with a lugga of 6 and 1/2 cubits and that the measurements were entered in the rent roll kept by the zamindar and in the receipts granted to the raiyats, and that in accordance with the said practice the defendants used to take settlement for specified rates per bigha. The plaintiff then alleges that from about 1305 to 1313 F.S. the lands were inundated by the river Kosi, and that in 1314 the defendants encroached upon the khas lands of the plaintiff, and that in 1316 a cadastral survey was made and it was found that the defendants were holding lands in excess of the area originally settled with them. At the trial the plaintiff produced the jamabandis for the years 1314, 1315 and 1316, also some karchas and counterfoil rent receipts. From the Munsif''s judgment it would appear that the jamabandis show the area, the rate per bigha and the total rental. The karchas show the area and the rental. The counterfoil rent receipts contain the same particulars, and on the back of them appear the thumb-impressions of the raiyats.

At the trial one of the issues (No. 14) was: "is there any system of measurement prevalent in the village where the plaint lands are situate?" This was answered by the Munsif in the affirmative. The Munsif appears to have held not only that the standard of measurement was 6 and 1/2 cubits, but also that there was a practice of measurement in the mauza such as is referred to in Clause (6) of Section 52, Bengal Tenancy Act, That clause provides that if such a practice is established then the Court may presume that the area specified in a patta, kabuliyat or rent roll has been entered in such patta, kabuliyat or rent roll after measurement and the Munsif gave effect to this presumption and found that the areas shown in the jamabandis and the other papers were entered after measurement.

The Subordinate Judge accepts the Munsif''s finding as to the length of the standard of measurement, but does not find that there was any measurement before entering the areas in the papers.

But in the course of the trial the plaintiff appears to have made an alternative case. He contended that even if his allegation of measurement was not accepted, and it was held that the jamabandi and other papers referred to an assumed area, still he was entitled to additional rent upon the difference between the present area and such assumed area.

The learned Munsif accepted this alternative contention although it did not arise upon his findings.

The Subordinate Judge took a middle course and he held that the areas entered in the papers were in fact assumed areas, and where the difference between the present area and the assumed area was small he declined to decree enhancement. He thought that it was quite possible that in these cases the area was under-estimated and that the area of the holding, at the time of its origin, was the same as that fixed by the partition proceedings. He appears to have founded his decision upon the principle of mutual mistake.

But where the difference was large the Subordinate Judge held that the raiyat must have encroached upon the zamindar''s land. The learned Judge found that the encroachment took place not upon the zamindar''s khas lands, of which he had none in the neighbourhood, but upon the lands of other raiyats paying rent to him. But as the law is that encroachments, whether upon the landlord''s khas lands or upon those of third parties, must always enure to the benefit of the landlord, the learned Subordinate Judge held that in these cases the difference between the present area and that shown in the landlord''s papers constituted an excess upon which the raiyat was liable to pay additional rent.

The Subordinate Judge accordingly dismissed 17 of the appeals.

In the remaining 18 appeals he disallowed the prayer for enhancement u/s 52 while maintaining the enhancement u/s 30(b).

We have now before us 33 second appeals.

In 18 the landlord appeals against the Subordinate Judge''s decree disallowing enhancement u/s 52.

In 15 appeals the tenants appeal against the Subordinate Judge''s decrees allowing enhancement u/s 52.

It is urged that the Subordinate Judge''s finding is that as the plaintiff has failed to show what was the area of the holdings at the time of their origin he is not entitled now to claim rent on any excess area, and that the operative part of the judgment is inconsistent with the findings.

In my opinion the findings, when properly understood, justify the decree; and it is desirable first to consider the scope of Section 52. Now excess area may be acquired by a tenant: (a) by encroachment on waste or unoccupied land of the same estate belonging to his landlord; (b) by alluvion; or (c) by encroachment on the lands of a third person. The tenancy may be created by reference to boundaries. In such a case the operative part of the contract lies in the enumeration of the boundaries and any reference to area is merely descriptive and does not affect the identity of the subject-matter of the grant.

Next, a tenancy may be created by the grant of a block of land described otherwise than by reference to boundaries. Here again any incorrect assertion as to the area will be merely false description and will not affect the liability for the rent reserved. In either of these two cases the rental may be either a lump sum without reference to rates or a lump sum based upon a rate or rates per unit of measurement.

The third case arises when a tenant squats upon the land of the zamindar and there is an implied contract of tenancy to pay fair and equitable rent upon all the land in his possession at any time. Strictly speaking Section 52 is not necessary to fix liability for excess area under such a contract. The liability for excess area arises upon the contract itself.

The fourth case arises when the contract is made not with reference to any boundaries or a specific block otherwise identifiable, but for a certain area at a certain rental. In such a case the area is of the essence of the contract and by subsequent excess found upon measurement renders the raiyat liable to pay additional rent. In determining the area demised the parties may either resort to measurement or they may agree to accept an assumed figure. In either case Section 53 operates. In the cases before us there is no finding that the original grant was for land within any specified boundaries or comprised in a specified block. The Subordinate Judge finds that there was no measurement before the grant and I think be intends to find that the settlement was for an assumed area. He does find that there was no rate per bigha; but that question is not material, The sole question is whether the rent reserved in 1314 was for an area less than the present area.

For the purposes of Section 52 it is not always necessary to ascertain the area of the original grant and the rent thereby reserved. All that the landlord has to show is that the present area is greater than the area for which rent was last paid. The onus is then shifted on the tenant to show that the excess land used previously to belong to the holding and was lost by diluvion or otherwise. As I read the learned Subordinate Judge''s findings I think he holds that the landlord''s papers show that in 1314 and subsequent years the tenants were paying the rents noted against their names for areas assumed by both parties to be correct and that they would be liable to pay additional rent: (1) if the jambandis of 1314 recorded a new contract; or (2) if the assumed areas were in accord with the state of affairs at the origin of the tenancies.

As the case of neither party was that there was a new contract of tenancy the only question for decision that remained was: What was the area at the origin? For this purpose the learned Judge accepted the jambandi papers as evidence but he declined to give that weight to them that the Munsif gave, and he held that in some of the cases they were inaccurate. The Munsif held that as there was a practice of measurement in the mauza the jamabandis must be taken to be accurate and conclusive as to the area of the holdings at their origin. The Subordinate Judge declined to accept the oral evidence upon this point and he drew attention to the fact that the papers previous to 1314 had not been produced and he thought that the areas shown in the jamabandi of 1314 might well be the area of the holdings at the time of their origin in those cases where the excess discovered in 1316 was only slight. On this point the learned Government Advocate, on behalf of the landlord, attacks the learned Judge''s finding on the ground that he did not consider the whole evidence in the case. It is pointed out that no reference is made to the fact that the tenants placed thumb-impressions upon the counterfoil rent receipts and that there is no discussion of the evidence of some of the witnesses who prove the measurements. As the Subordinate Judge had the whole evidence before him his finding in favour of the tenants with reference to these cases is, I think, conclusive.

Therefore the Second Appeals Nos, 1454 to 1471 of 1924 preferred by the landlord must be dismissed with costs. I do not think there is any ground for the suggestion that the learned Judge was labouring under the impression that the landlord must prove measurement in 1314. It is clear that he did not consider that necessary. And as to the onus which rested upon the tenants to show that the present area is not in excess of the original area, though it is not quite clear whether the Subordinate Judge has correctly placed the burden, the learned Judge has come to a finding on the evidence on both sides and the question of the burden of proof becomes academical.

In regard to the cases in which the difference is large, the learned Subordinate Judge takes the view that the jamabandi of 1914 is approximately correct and the large difference shows that the excess is real. The position taken by the learned Subordinate Judge is perhaps not very logical, but he was entitled to find in which cases the jamabandi area was not the original area and his finding is conclusive.

Therefore Second Appeals Nos. 915 and 963 to 976, which have been preferred by the tenants, are dismissed with costs.

Before concluding it is necessary to refer to Manindar Chandra Nandi Vs. Kaulat Shaik and Another, . In this case the landlord produced jamabandis and rent receipts showing the area in certain years and he claimed additional rent on excess area found in the possession of the raiyat in a subsequent year. Their Lordships of the Calcutta High Court held that the claim could not be allowed, but in affirming the decision of the lower appellate Court, which was conclusive as a finding of fact, their Lordships reviewed the previous law on the subject in Bengal and made certain observations upon which, though obiter, considerable stress has been laid by the learned vakil for the tenant appellants before us. The material passage of the leading judgment runs as follows:

I take it to be the settled rule of this Court that when a letting upon the basis of a measurement is proved the tenant has prima facie to show that the rent was a consolidated rent for all the land within specific boundaries, but that in the absence of such proof the mere production of such dakhilas as those now in evidence does not suffice to throw any onus on the tenant. The position then is simply that the landlord has failed to establish the fact of excess area because he has failed to show with sufficient certainty what the area in fact was for which the rent was originally reserved. There is no reason whatever forbidding a landlord from proving, if he can, a contract of the nature indicated in Dhrupad Chandra Koley v. Huri Nath AIR 1919 Cal 1091, but entries of area and rate in dakhilas or jamabandis do not suffice to prove this by themselves in the absence of further material throwing light upon the original conditions of a holding whose origin is beyond the reach of direct evidence.

The learned Judges appear to have been disinclined to accept the view taken in this Court in Maharaja Kesho Prasad Singh Vs. Tribhuan and Others, , where it was held that statements of area in the landlord''s papers whether after measurement or not were evidence for the purpose of ascertaining what the area was for which the rent shown in jamabandi was being paid. It would seem that the learned Judges were of the opinion that unless the jamabandis were prepared after measurement no claim for enhancement could be founded upon them. In their view the settled rule of the Calcutta High Court was that an assumed area could never he a foundation for such a claim. It does not appear, however, that the case of Durga Priya Choudhuri v. Nazra Gain AIR 1921 Cal 345, was considered by the learned Judges. There Mookerjee, C.J., observed that a jamabandi prepared by the landlord, though not binding upon the tenant, was admissible as evidence that since the creation of the tenancy, rent has been assessed and that such assessment was on the basis of a certain area; and in remanding the case the learned Chief Justice gave the following directions: "The District Judge will first consider whether since the date of the last assessment of rent, land has been added to the holding by encroachment, accretion or in like manner. If this is answered in the negative, he will consider whether the rent was assessed at a consolidated sum for the entire tract in the possession of the tenant, whatever its area might turn out to be, or whether the rent was assessed on an area fixed by estimate or determined by measurement. If the rent was not fixed as a consolidated sum the plaintiff is entitled to additional rent." This view of the law is in accord with that which had been taken in this Court in 1917 in Maharaja Kesho Prasad Singh Vs. Tribhuan and Others, . It was subsequently affirmed in Lalla Sheo Kumar Lal v. Ramphal Das AIR 1920 Pat 531, and in our opinion the learned Subordinate Judge was right in taking the landlord''s papers into consideration in ascertaining whether the excess in the cases before him was real or fictitious.

The result is that all the appeals before us are dismissed with costs.

Kulwant Sahay, J.

I agree.