Somar Singh and Others vs Banke Behari Lall and Others

Meredith, J.—This is a second appeal by defendants in a rent suit. The suit related to cash rents for the years 1344 to 1346 Fasli and produce rents for the years 1345 and 1346 Fasli, but the only question raised in this appeal is with regard to the produced rents for the year 1346, in regard to which a decree has been given to the landlords both for paddy and rabi crops.

With regard to the produce rents for this particular year, the appellants set up a defence that there had been proceedings under Sections 69 and 70, Bihar Tenancy Act, and consequently no suit for the rents of that year was maintainable in the civil Court. The Courts below, however held that they were entitled to ignore the proceedings under the Bihar Tenancy Act, because of inadequacy of notice to the landlords and because the reason given by the Deputy Collector for rejecting the landlord''s objection u/s 70(4) was not a proper one.

The Courts below have not dealt with the matter correctly. The procedure under Sections 69 and 70 is briefly this. u/s 69(1) the Collector appoints an officer to divide the produce. That officer u/s 70(2) then gives notice to the landlord and tenant of the time and place at which the division will be made, and if either the landlord or the tenant fails to attend either personally or by agent, he may proceed ex parte. Having made the division he submits a report of his proceedings to the Collector u/s 70(3). Thereupon u/s 70(4) the Collector is to consider the report, and after giving the parties an opportunity of being heard and making such inquiry, if any, as he may think necessary is to pass such orders as he thinks just. Finally, u/s 70(6) the Collector may, if he thinks proper, refer any question in dispute for the decision by a civil Court, but, subject to that, his order shall be final and shall on application to a civil Court by the landlord or the tenant be enforceable as a decree.

The proceedings with regard to the paddy crops of the year 1346 were numbered as No. 18 of 1938-39 (vide order-sheet Ex. 7), those with regard to the rabi crops of that year were numbered as No. 20 of 1939-39. The final order of the Deputy Collector in case No. 18 of 1938-39 has not been filed, but an order of his of the following year has been filed in which the learned Deputy Collector considered the apparently similar objection of the landlords with regard to the proceedings for the following year 1347 subsequent to the suit. In that order, which is a final order u/s 70(4), he considers the objection of the landlords, and rejects it as without substance, and remarks that the landlords'' share of the crops had been made over to the applicants for custody on the landlords'' refusal to accept it and that it would be made over to the landlords whenever they applied for it. Apparently in both years the landlords refused to take their share, and it was made over for custody to the tenants. The learned Deputy Collector goes on to say that by this order he finally disposes of not only Case No. 9 of 1939-40 but also No. 20 of 1938-39. With regard to Case No. 18 of 1938-39 of which we have not got the final order, he remarks that in that case the order had gone up to the Commissioner, and had been upheld.

It is to be observed that the suit was a pure suit for rent, asking that the proceedings under Sections 69 and 70 should be ignored, and was in no sense an application to the civil Court u/s 70(6) by the landlords to enforce the Collector''s order as a decree. This being the scope of the suit, the Courts below were not entitle to ignore the proceedings as they did. They were not entitled to go into the question whether the order passed by the Collector was passed on proper grounds or not. They were not sitting in appeal over his decision. Whether the grounds given by him for the view he took were adequate or not, was not a question for them to decide. Once the Collector had passed final orders the civil Court had no jurisdiction.

Then with regard to the question of notice, no particular form of notice is necessary u/s 70(2). It was not open to the Courts below to hold that the proceedings were invalid, because the notice was not in proper form. What actually happened was that the officer deputed to make the division gave notice to the landlords'' gorait in the village, who refused to accept the landlords'' share. As pointed out in Dindayal Singh and Others Vs. Raj Keshwar Narayan and Others, , there is nothing in Section 70(2) which requires that notice should be served personally upon the parties, and no particular method of serving the notice is prescribed in the Act. In order to comply with the provisions of the section all that is necessary is that the parties should in one manner or another be given notice of the fact that the Amin is about to make an appraisement.

The Courts below failed to notice that in both proceedings the landlords had appeared before the Collector and made an objection before the division of the crops was actually made. They were parties to the proceedings in each case when the date for division was fixed by the officer deputed, and in each case the date fixed was entered in the order-sheet of those proceedings. It was the landlords'' duty to take notice of those orders, and in the circumstances they could not have contended that in fact they had no notice of the division. It is farther to be noticed that when the matter was finally disposed of in the order which is Ex. E-1, the landlords though they objected to the division never said that they had. no notice of the date fixed. Their objection was on other grounds.

In the circumstances the reasons given by the Courts below for holding that they could ignore the fact that proceedings had been taken and the crops had been divided were not sound.

It has been argued before me, however, that at least in the proceedings with regard to the paddy crop there is no final order of the Collector within the meaning of Section 70(4) and, therefore, there is no order which the civil Court were bound to treat as final. I have mentioned that in Ex. E-l there is a reference to those proceedings having gone before the Commissioner. Presumably, therefore, there was a final order. Even assuming however that there was no final order, that would still not give the civil Courts jurisdiction to pass a decree for rent ignoring the proceedings under the Bihar Tenancy Act. In such case the remedy of the landlords was to go to the Collector, and ask for a final order. This has been clearly laid down in Ajab Lal Munder and Others Vs. Naresh Mohan Thakur and Others, where a Bench of this Court observed that "the fact that no final order has been made does not in itself entitle the landlord when proceedings have been taken u/s 69 to sue for rent ignoring the proceedings which have been taken." Their Lordships say that "whilst proceedings are pending under Sections 69 and 70 it would be a complete answer to any suit brought by the landlord for rent to plead that the matter was the subject of adjudication by the Collector." If no final order has been passed, the proper course was for the landlords to apply to the Collector to pass a final order, which would enable them to receive their share of the produce from the persons in whose custody it had been deposited.

It is urged that if the present suit fails, the landlords have no remedy. That does not appear to be correct. In the Collector''s final order relating to case No. 20 it is expressly stated that the landlords can secure their share upon application. There is no reason to suppose that the landlords would not equally be given an order by the Collector in case No. 18 enabling them to secure their share.

I must hold that the Courts below were not entitled to give any decree for the produce rents of the year 1346, which were the subject-matter of proceedings under Sections 69 and 70, Bihar Tenancy Act. The appeal is therefore allowed with costs, and the decree must be modified so as to exclude the produce rents of that year therefrom. The costs allowed to the landlords must, of course, be proportionately reduced.

Leave to appeal under the Letters Patent is refused.