Sri Bhagwan Singh and Another vs Ram Sundar Raut and Others

Harries, C.J.—These are five Letters Patent appeals from a decision of a learned single Judge of this Court reversing decrees of the lower appellate Court passed in favour of the plaintiff-appellants in five rent suits. The five rent suits were brought by the plaintiff-appellants to recover rent from the respondents in respect of sarahmoian tenancies which they held. The defendants admitted that they were fixed rate tenants, but they alleged that the claim was for an amount in excess of the rent payable. The learned Munsif acceded to the contention of the tenants and decreed the suits for a lesser sum. On appeal the learned Subordinate Judge set aside the decisions of the Munsif and decreed the suits in full. In second appeal, the learned single Judge reversed the decrees of the lower appellate Court and restored the decrees of the learned Munsif.

The tenancies in question were created in the year 1860 and the rent payable was fixed at so much per bigha. In the year 1912, the record of rights was prepared, and according to the landlords the areas recorded in the record of rights were found to be in excess of the areas thought to have been originally settled. This was the case not only with regard to the present appellants but also with regard to a number of other tenants. In some cases the landlords took proceedings u/s 105, Bihar Tenancy Act, and in other cases they brought civil suits against the tenants for assessment of rent upon the excess areas. Some of these suits appear to have been successful and some failed. Suits, however, it is said, were not brought against the tenant-respondents, because according to the landlords they agreed to pay rent for the additional area found to be in their possession at the rate mentioned in the kabuliyats. In short, it is the landlords'' case that the tenants agreed that the areas shown in the record of rights were the correct areas and that they the landlords had not been paid up to that time the full amount of the rent for the areas which the tenant occupied.

In June 1937 the Government took certain steps for reduction of rents in the Shahabad area u/s 112, Bihar Tenancy Act. In accordance with that section a notification was issued appointing a Rent Reduction Officer and empowering him to reduce rents. The present respondents and others applied to this officer for reduction of their rent on the ground that it had been enhanced illegally by the landlords. They contended that being sarahmoian tenants the landlords had no right to enhance their rents which they had done on the ground of a general rise in prices. The landlords'' case was that the rent payable was the agreed rent at the agreed rate for the area actually in occupation. The Rent Seduction Officer accepted the tenants'' case and reduced their rents to the actual amounts shown in the record of rights. This decision was upheld in appeal by the Settlement Officer, and afterwards the landlords brought the present suits to recover rents at amounts greater than those allowed by the rent reduction authorities. The amounts claimed were at the rates of rent fixed in the kabuliyats, but the total amount for each holding was greater than the amount shown in the record of rights. This, the landlords said, was due to the fact that the tenants were in occupation of an area in excess of what it was thought when the amount of rent per holding was fixed. The learned Munsif, who heard the cases at first instance, went into the question as to whether the tenants were in possession of a greater area than was stated to have been originally settled with them. He found that they were not, and he also found that the difference between the amount of rent claimed and the amount shown in the record of rights was due to an illegal enhancement by the landlords based on increase in prices. In appeal the lower appellate Court found that the tenants were in possession of a greater area than was stated at the time of the original settlement. He also found that the amount of rent claimed was the correct amount at the rates stated in the kabuliats, and he further found that the tenants had agreed to pay these various amounts as rent.

In second appeal, the learned single Judge pointed out that the trial Court and the lower appellate Court had no right whatsoever to sit in judgment over the Rent Education Officer, and undoubtedly they had done so. The learned Munsif had agreed with him, whereas the learned Subordinate Judge had disagreed with him. The learned Subordinate Judge, however, did come to the conclusion that the Rent Education Officer had no jurisdiction to reduce the rent, because he had done so on a ground which was wholly untenable. According to the learned Subordinate Judge, he had reduced the rent, because he thought it had been illegally enhanced, whereas in fact the increased amount of rent was due to the area of the holdings being found to be greater than was originally thought.

The learned single Judge pointed out that unless the decision of the Rent Education Officer was without jurisdiction it was binding and would have to be accepted whether it was right or whether it was wrong. I entirely agree with that view. It was not for the lower Courts to sit in judgment on the decision of Rent Education Officer. If the latter I acted with jurisdiction, they were bound by the amount of rent which he found. But, on the contrary, if he had no jurisdiction to consider the rents, in this case, then the civil Courts could ignore entirely the orders of the Rent Education Officer.

The learned single Judge in a full and elaborate judgment has considered whether the Rent Education Officer had in this case jurisdiction to reduce the rents of these sarahtnoian tenants. He has held that he had jurisdiction, and, therefore no rent could be decreed in excess of that settled by the Rent Education Officer whether the latter''s decision could be justified or not upon the merits.

In these appeals it has been contended before us that the learned single Judge is wrong in holding that the Rent Education Officer had jurisdiction to reduce the rents of these sarahmoian tenants. The Provincial Government proceeded to act under the provisions of Section 112, Bihar Tenancy Act. That section is in these terms:

(1) The Local Government may, on being satisfied that the exercise of the powers hereinafter mentioned is necessary in the interests of public order or of the local welfare, or that any landlord is demanding rents which have been illegally enhanced, above those entered as payable in a record of rights prepared under this chapter, invest a revenue-officer with the following powers or either of them namely: (a) power to settle all rents; (b) power, when settling rents, to reduce rents, if, in the opinion of the officer, the maintenance of existing rents would on any ground, whether specified in this Act or not, be unfair or inequitable.

(2) The powers given under this section may be made exercisable within a specified area either generally or with reference to specified cases or classes of oases.

(2)(a) A settlement of rents under this section shall be made in the manner provided by Sections 104 to 104J (both inclusive).

The actual notification appointing the Rent Education Officer is Notification No. 2817-11T-34-B. of 19th June 1937, and is in these terms:

Whereas it appears to the Government of Bihar that between 1920 and 1932 in fixing or enhancing money rents and in commuting produce rents in the district of Shahabad regard was had to the exceptionally high prices of staple food crops which prevailed in and about that period, and that, in view of the present exceptionally low level of prices, the rent so fixed may now be unfair and inequitable and whereas the Government of Bihar is satisfied that in the interests of the local welfare it is necessary to exercise the powers conferred on it by Section 112, Bihar Tenancy Act.

Now, therefore, in exercise of the said powers the Government of Bihar do hereby invest--

Maulavi Muhammad Aiyub, Deputy Collector, being revenue officer in the said district of Shahabad with power--

(a) to settle rents and (b) when settling rents, to reduce rents, if in his opinion, the maintenance of existing rents would on any ground be unfair or inequitable in the following class of cases, namely, cases of money rents of occupancy raiyats now payable or being paid which became payable or commenced to be paid on or after the first day of January 1920 and on or before the thirty-first day of December 1933.

A later notification substituted the year "1915" for the year "1920." There is no doubt that the rents in the present case were increased in the year 1919 that is after the year 1915 as mentioned in the amended notification. The question which arises is whether this notification empowered the Rent Education Officer to reduce rents payable by what are admittedly saramoian tenants. It will be seen that from the terms of the notification that in settling the rents the officer had powers to reduce rents in certain cases, namely, in bases of money rents of occupancy raiyats then payable or being paid which became payable or commenced to be paid on or after the first day of January 1915 and on or before the thirty-first day of December 1933. It has been strongly urged that this notification only empowers the Rent Education Officer to interfere in the case of money rents of occupancy tenants and that he had no right to reduce money rents payable by sarahmoian or fixed-rate tenants. The learned single Judge was of opinion that fixed-rate tenants were in fact occupancy raiyats and something more. He pointed out that a fixed-rate tenant acquired occupancy rights, and any person who had occupancy rights was an occupancy raiyat. He might, according to the learned Judge, have some greater rights, but he was at least an occupancy raiyat and the money rent was the money rent of an occupancy raiyat. That being so, the learned Judge held that the Bent Reduction Officer had jurisdiction to reduce the money rents payable by the sarahmoian tenants, who are the present respondents, and having jurisdiction, the rent as reduced by him was binding and such only could be decreed in these suits.

With great respect to the learned single Judge, I am unable to agree that the notification to which I have referred, enabled the revenue officer to reduce rents of sarahmoian tenants. It must be remembered that this notification was issued u/s 112, Bihar Tenancy Act, and the expression occupancy raiyats used in that notification must be given the same meaning as it has in the Bihar Tenancy Act. In Section 4(3), Bihar Tenancy Act, raiyats are classified into three classes: (a) raiyats holding at fixed rates, which expression means raiyats holding either at a rent fixed in perpetuity or at a rate of rent fixed in perpetuity, (b) occupancy raiyats that is to say, raiyats having a right of occupancy in the land held by them and (c) non-occupancy raiyats, that is to say, raiyats not having such a right of occupancy. It is clear, therefore, that a distinction is drawn between "raiyats holding at fixed rates" and "occupancy raiyats," that is between sarahmoian tenants and occupancy raiyats. "Sarahmoian tenants" mean tenants holding either at a rent fixed in perpetuity or at a rate of rent fixed in perpetuity. In the present case, they were tenants holding at a rate of rent fixed in perpetuity. On the other hand, "occupancy raiyats" are raiyats having a right of occupancy and no more. As this clear distinction is drawn between these two classes of raiyats in Section 4, Bihar Tenancy Act, it follows that when occupancy raiyats only are mentioned in the notification such cannot also include sarahmoian tenants.

It was pointed out that a sarahmoian tenant the moment he has entered into a sarahmoian tenancy agreement, has not acquired occupancy rights, though his contract, the moment he has entered into it, gives him very far reaching rights. It was urged, however, that once such a tenant had been in occupation for 12 years he became a settled raiyat and acquired occupancy rights, and having a right of occupancy he therefore became an occupancy raiyat.

In my judgment, throughout the Act raiyats holding at fixed rates and occupancy raiyats are dealt with separately. For example, the rights of raiyats holding at fixed rates are dealt with in Chap. 4 of the Act which consists only of one section, Section 18. The rights of occupancy raiyats, however, are dealt with in Chap. 5 of the Act in Sections 19 to 40A. The terms are not interchangeable, and the term "occupancy raiyat" when used in the Act clearly does not include sarahmoian tenants. The rent of a sarahmoian or fixed rate tenant is fixed in perpetuity and cannot be enhanced on any ground by the landlord, and once it is fixed, it is fixed for perpetuity. Sections 27 and thereafter deal with enhancement of rent of an occupancy raiyat. For example, the very terms of Section 30, Bihar Tenancy Act, make it clear that they have no application to a fixed rate tenant. If the term "occupancy raiyat" was wide enough to cover all persons who might have acquired occupancy rights, then Section 30 would, according to the learned single Judge, apply to fixed rate tenants. From its very terms it cannot.

Again Section 18(b) of the Act deals with the liability of a raiyat holding at a fixed rate to be ejected by his landlord, whereas Section 23 deals with how to eject an occupancy raiyat. It is quite clear that occupancy raiyats can be ejected on grounds upon which fixed rate tenants cannot be ejected. If a fixed rate tenant, who has been in possession for 12 years, acquires a right of occupancy and thus becomes an occupancy raiyat, then after a lapse of 12 years he can be ejected upon grounds which he could not be ejected during the first 12 years. The rights of fixed rate tenants are considerably wider than the rights of occupancy raiyats, and if it be held that after 12 years a sarahmoian tenant becomes an occupancy tenant, then with the lapse of 12 years his rights are materially out down. That cannot be so, and such a conclusion will not follow if it is kept dearly in mind that when the term "occupancy raiyat" is used in the Bihar Tenancy Act it does not include the fixed rate tenant who is recorded as in a different class altogether.

Counsel for the respondents relied on the case is Basarat Sarkar and Another Vs. Hiru Pramanik and Others, . in which it was held that a raiyat holding at a fixed rate from the inception of the tenancy may subsequently acquire a right of occupancy e. g., by continuous occupancy for 12 years, so as to be protected u/s 160, Ben. Ten. Act. Reliance was also placed on Tarini Charan Sardar and Others Vs. Srish Chandra Pal, in which it was held that a raiyat holding at a fixed rent may acquire the right of occupancy and so may an occupancy raiyat acquire the status of a raiyat holding at a fixed rent. An occupancy raiyat may therefore claim the presumption u/s 50, Ben. Ten. Act, on proving the necessary facts. It is to be observed that the view of the Calcutta High Court has not been consistent. In Bhut Nath Naskar v. Surendra Nath Dutt 13 C.W.N. 1025 Mookerjee, J. agreeing with Doss J., held that the interest of a raiyat at fixed rates is not a "protected interest" within the meaning of Section 160, Ben. Ten, Act, and it was held in that case by Jenkins C.J. and Mookerjee J. that a raiyat holding at fixed rates does not, after he has been in occupation for 12 years, become a "settled raiyat" of the village and thus acquire a right of occupancy.

In my judgment, it is unnecessary to consider these two views in the present case. In my judgment, it is immaterial whether a tenant at a fixed rate may or may not in course of time acquire some rights of an occupancy raiyat. Whether he does or whether he does not, he is not throughout the Act regarded as an occupancy raiyat, and that phrase in the Act is never used to include sarahmoian tenants. That being so, when the phrase "occupancy raiyat" appears in the notification under the Act, the Provincial Government must have meant occupancy raiyats proper. If they had intended to include fixed rate tenants, they would have said so. In my judgment, the notification in this case only empowered the revenue officer to reduce rents in the case of occupancy raiyats. The defendants were not such raiyats, and that being so, the reduction made by the Rent Education Officer was wholly without jurisdiction.

It was urged by Mr. Azizullah, who has argued this case very fully, that even if the Bent Seduction Officer had no jurisdiction to reduce rents he obviously had jurisdiction to settle rents, and that is, it is said, what he did in this case. It is clear that in the present case he was invited by the tenants to reduce the rents which had been payable by them since the year 1919, and he did reduce such rents. It is argued that what he really did was to settle rent at the rent as shown in the record of rights. If he did settle rent, he settled the rent by reducing it, and he was only empowered by the notification to settle rent by reducing in the case of occupancy raiyats only. On the facts it is clear that he did reduce rent payable by tenants who were sarahtnoian tenants and not occupancy raiyats in the true sense of the word. That being so, his act was wholly without jurisdiction, and the civil Courts were entitled to ignore entirely the rent reduction. The learned Subordinate Judge for different reasons decreed the claim in full, and though I do not agree with his reasons his decision ought to have been affirmed by the learned single Judge. The decision of the lower appellate Court, however, was reversed by this Court, and the decision of the learned single Judge must be set aside. In the result therefore I would allow these five appeals, set aside the decision of the learned single Judge and restore the decrees of the lower appellate Court. The appellants are entitled to one set of costs in this Court and in the Courts below.

Fazl Ali, J.

I agree.