Surjo Mohan Thakur vs Chhote Singh and Others

Courtney-Terrell, C.J.—The four suits out of which these four Letters Patent Appeals arise wore brought by the plaintiff-landlord against the tenant-defendants for arrears of rent for the years 1337 to 1340 in respect of the plaintiffs'' twelve annas share. The lower Courts decreed the suit, and the learned Judge of this Court sitting singly has set aside the decrees and awarded a partial decree en the basis of the rent which has hitherto been paid by the tenants.

The claim of the plaintiff was based upon the contention that, although the rent which had theretofore been paid was the correct rate of rent for ordinary cultivation, yet the tenants had begun to cultivate crops such as sugarcane and vegetables on parts of their land and that by ancient custom of the estate in the case of land which was cultivated by the tenants with crops of that nature the rent stood at the rate of Rs. 5 a bigha which is in excess of the old rate. The defendants contended that the amount by which the rents according to such claim of the landlord were stated as payable was in excess of the actual rent and constituted an abwab. They further took the point that the rent had been the matter of settlement proceedings and the rent had been fixed at the rate that had up to the date of the suits been paid.

The lower Courts held that in this estate the custom was established by the plaintiff, and directed that in respect of land bearing these particular crops, the rent to be paid should be, as the plaintiff claims, Rs. 5 a bigha instead of the former rent which they held was payable only in respect of crops of other kinds.

In second appeal the learned Judge of this Court came to the conclusion that the evidence upon which the plaintiff relied in order to establish the custom was not proper evidence of custom and did not tend to establish the custom alleged. He further held that the addition to the old rent in respect of land cultivated with sugarcane and vegetables which was claimed by the plaintiff was in the nature of an abwab and that no amount of proof of custom could legalise the levying of an abwab. He further held, and in my opinion in this matter rightly held, that the suits were not maintainable because in the settlement proceedings u/s 105 of the Bengal Tenancy Act the rent had definitely been fixed, and by reason of Section 107, could not be made the subject of further litigation

With regard to the consideration of the enhanced rent claimed as an abwab, we find ourselves in disagreement with the view of the learned Judge of this Court. The rent is that which is paid by a tenant for the use and occupation of the land. Actual rent is the rent actually agreed upon between the parties. It is quite possible for tenants to be inducted upon a land upon an agreement to pay the customary rent and that is a perfectly good contract, and on proof of what has been customary such rent is leviable. What must not be levied is something in excess of the actual rent agreed upon. It is not the concern of the tenant how the landlord actually devotes the money which is paid to him by way of agreement by the tenant for the use of the land. If the amount has definitely been agreed upon, it is the actual rent. Therefore, we are unable to agree with the earlier part of the learned Judge''s judgment. The evidence which was adduced to prove the alleged custom, which custom has been found as a fact to exist by the lower Courts, was evidence as to the rent payable in neighbouring areas and in neighbouring taluqs, and in many cases, the rent which was stated to have been customary as rent which has in the past been paid by the defendants themselves. All this evidence was relevant to prove the fact of a custom had the matter of the custom itself been a relevant issue. But the fatal objection to the suits is the fact that the rent has in fact been fixed at a lump sum in respect of each of the holdings by the Settlement Officer. It was argued by Md. Das that this is introducing into Section 107 the doctrine of constructive res judicata, which is, however, an erroneous contention The actual issue which had to be decided as between the parties was what is the rent in respect of each of these holdings, and the Settlement Officer decided upon a definite sum. It is, therefore, not open to the plaintiff in a suit to attempt to establish that the rent even in a limited class of cases is other than the rent which the Settlement Officer in fact found to be payable.

In the result, the order of the learned Judge dismissing the suits was correct for the last-mentioned reason. I would, therefore, dismiss these appeals with costs.

Fazl Ali, J.

I agree.