W.H. Meyrick and Others vs Dipa Pandey and Others

Mullick, J.—This appeal arises out of a suit for rent in respect of the years 1324 to 1327 F.S. of the 10 annas kist in respect of a holding measuring 3 bighas 3 cottahs. The facts found are that in 1308 the defendants took settlement from the plaintiffs or their predecessors of a parcel of 16 cottahs at a rent of Rs. 4 per annum. In 1309 they took settlement of another parcel of 2 bighas 7 cottahs at a rent of Rs. 11-12-0 for a term of 7 years from 1309 to 1315. In 1316 the defendants took a settlement not only of the 2 bighas 7 cottahs the lease in respect of which had expired in 1315 but also of the parcel of 16 cottahs the lease in respect of which had expired in 1310. The rent for this total area of 3 bighas 3 cottahs was 20 maunds 19 seers of grain per year. On the expiry of this lease the defendants again in 1323 contracted to pay rent for the 3 bighas 3 cottahs at 21 maunds 10� seers of grain for the period 1323 to 1331 F.S. The present suit was instituted on the 22nd December, 1919, for the rent of the period between 1324 to 1326 and for a portion of the year 1327 as above stated.

The defence in the Trial Court was that the defendants were occupancy ryots in respect of both parcels, namely, the 16 cottahs parcel and the 2 bighas 7 cottahs parcel and that the consolidated rental of 20 maunds 19 seers which they had agreed to pay by the kabuliyat of 1316 violated the provisions of Section 29 of the Bengal Tenancy Act which requires that the money rent of an occupancy raiyat shall not be enhanced by more than 2 annas in the rupee. It is stated in the kabuliyat that the money value of the grain was estimated at Rs. 61 and it was admitted that if the provisions of Section 29 applied to the case then there had been an enhancement contrary to law.

The Munsif found that the defendants were occupancy raiyats in respect of both parcels and that by consolidating the two parcels into one and by taking a kabuliyat for the total area of 3 bighas 3 cottahs the plaintiffs could not be allowed to take themselves out of the restrictions provided by Section 29. He accordingly decreed the suit for the admitted jama that is to say for a total rental of Rs. 15-12 per annum.

The Subordinate Judge in appeal confirmed this decree.

There was then an appeal to this Court which was heard by Mr. Justice Foster and he also has taken the same view as the Subordinate Judge and found that Section 29 of the Bengal Tenancy Act is a bar.

The first point urged in this Letters Patent Appeal is that there has not in fact been any enhancement in respect of a holding. It is urged that by the consolidation of 1316 the two separate parcels of 16 cottahs and 2 bighas 7 cottahs lost their identity and that there was in this case no enhancement in respect of a holding.

The plaintiffs rely upon a judgment of the Calcutta High Court in Raj Kumar Sarkar v. Faizuddi Tarafdar (1915) 22 C.L.J. 81. In that case, some additional land was added to a holding and the whole was assessed at an enhanced rental. The new kabuliyat specified the rental assessed upon the old land as well as the rental assessed upon the new land and it was urged that a new holding had been created and that there was no enhancement of rent in respect of an old holding which could attract the operation of Section 29 of the Bengal Tenancy Act. The learned Judges of the Calcutta High Court held that the question must be answered with reference to the circumstances of each individual case and the matter was one of substance and not of form. The Court must determine whether a new holding has been created though it may include the land of the original holding or whether the parties had recourse to a colourable device to evade the provisions of Section 29. In this case it is quite clear that the defendants held two separate holdings at specific and definite rentals which were consolidated into one holding at an enhanced rental very much beyond what is permissible u/s 29. I cannot see that any case is made out which would permit us to hold that there was some unassessed land added to the 2 bighas 7 cottahs and that a new holding was created which had no reference to the rentals of the lands held under the previous contracts.

It has been urged that the 16 cottah parcel was not in the possession of the defendants at the time of the lease of 1316 and that between 1311 and 1315 the landlords were in possession of it. It is suggested that the defendants had no occupancy right in this parcel and that it was khas land upon which no rent had been assessed and which was added to the 2 bighas 7 cottahs in which the defendants had an occupancy right at the time of the lease of 1316. If that were so, there might be some justification for urging that a new holding was formed and that the rental of Rs. 61 assessed upon the area of 3 bighas 3 cottahs was not an enhancement of the rent of any original holding in the possession of the defendants. But the fact seems to be, and it has been found by the learned Subordinate Judge that the defendants were settled raiyats of the village and that at each successive lease they at once acquired occupancy rights in the parcels covered by the lease. Therefore, in 1308, they became occupancy-raiyats of the 16-cottah plot and in 1309 they became occupancy-raiyats of the 2 bighas 7 cottahs plot. A rental of Rs. 61 is clearly an enhancement of more than 2 annas in the rupee on the consolidated rental of those two holdings. The contention, therefore, that the plaintiffs are debarred from claiming more than 2 annas in the rupee must be accepted.

Then it is urged that the defendants by acquiescing in the payment of rent at the rate of 20 maunds 19 seers per annum for the years 1316 to 1322 have precluded themselves from raising any objection u/s 29 of the Act. There is no justification for this contention. A claim for rent is a recurring claim and it is open to the tenant at any time to take an objection on the ground that the claim contravenes the provisions of the law.

It is also suggested, though somewhat faintly, that although the tenant may not surrender his occupancy-right, he may agree with his landlord that he will not object to pay a rent which is contrary to the provisions of the law. For this proposition also there is no foundation.

The result is that the judgments of the Courts below must be affirmed and the appeal dismissed with costs.

Dawson Miller, C.J.

I agree.