Patna High Court
Babu Gonda Singh And Anr. vs Jitan Mahto And Ors. on 30 March, 1925
Equivalent citations: 88IND. CAS.395, AIR 1925 PATNA 795
JUDGMENT B.K. Mullick, J.
1. The first question in the case is whether dahiyak is to be allowed to the plaintiffs. This has been viewed by the Munsif as an abwab. The Additional District Judge, however, in appeal finds that it is not an abwab but that it is a part of the hakmi share of the bhaoli rent. He holds that the share of the malik, instead of being 20 seers, is 22 seers and he disagrees with the entry in the Record of Rights which classes the claim on account of dahiyak as an abwab. The learned Judge, however, does not in terms say that the Record of Rights is rebutted; but on reading his judgment it is clear that what he means is that the presumption attaching to the Record of Rights had been rebutted and that the charge on account of dahiyak is not an illegal cess within the meaning of the Bengal Tenancy Act.
2. It is contended that the learned Judge had no evidence before him for coming to this finding; but it appears that he looked at the zemindari collection papers for many years and came to the conclusion that the zemindar had been realizing at the rate of 221/2 seers and not at the rate of 20 seers in the maund. I think there was evidence before the learned Judge and that his finding in regard to dahiyak cannot be challenged in second appeal.
3. The next point is whether the learned Judge's finding as to the years in which sugar-cane was grown and as to the raiyats by whom it was grown is supported by evidence. On behalf of the landlords, who are the appellants before us, it is contended that the learned Judge has made a case of his own and has acted quite regardless of the evidence before him. But it appears that although there was evidence given by the plaintiffs with regard to sugar-cane having been grown by the tenants, Baiju, Etwari and Bedu for more than one year the learned Judge did not rely upon that evidence but went upon the admission of the tenant Nanhku who said that he had grown sugar-cane for one year only. In the circumstances we cannot say that there was no evidence for the finding that sugar-cane was grown only in the year 1325 F.S.
4. The third point is that the learned Judge should have given either interest or damages. Now the holdings being bhaoli and there being no evidence that rent was payable quarterly, interest under Section 67 of the Bengal Tenancy Act was not chargeable. Interest might have been claimable under the Interest Act, but the claim is not put under that enactment.
5. Then as regards the claim for damages, the learned Judge had a discretion in the matter and the question cannot be agitated in second appeal.
6. The result, therefore, is that the only point in which the learned Judge's decree will be varied is as to the hakmi share which will be calculated in the proportion of 9 to 7, that is to say 221/2 seers in the maund. The appeals are, therefore, decreed in this modified form with costs. Hearing-fee will be Rs. 16 in each case.
Ross, J.
7. I agree.