Patna High Court
Maharaja Kesho Prasad Singh vs Tribhuan And Ors. on 9 February, 1917
Equivalent citations: 39IND. CAS.611, AIR 1917 PATNA 458
JUDGMENT Mullick, J.
1. Appeal No. 185 of 1914 arises out of Appeal No, 4 6 before the Special Judge of Shahabad.
2. It appears that Maharaja Kesho Prasad Singh of Dumraon made an application for settlement of fair and equitable rents under Section 105 of the Bengal Tenancy Act before the Assistant Settlement Officer, The case of the tenants with whom we are now dealing was considered in Suit No. 268 by the Assistant Settlement Officer and the principle issues framed by him were: (1) Whether the defendants or any of them do really hold any land in excess of that for which they pay rent? (2) Whether the holdings of defendants or any of them were determined previously by any measurement? If so, by what standard? (3) Is there any practice in plaintiff's estate to settle lands with tenants after measurement? The tenants also set up a claim to being raiyats at fixed rates and denied that the landlord was entitled to any enhancement under Section 30(b) of the Bengal Tenancy Act. We are not concerned with the finding of the Settlement Officer that the tenants were occupancy raiyats, for it is admitted here that they occupy that status, We are also not concerned with the question whether any enhancement was properly allowable under Section 30(b) of the Bengal Tenancy Act. Then as to the question whether a second appeal lies in reference to an enhancement under Section 52, a conclusive answer has been given by a Full Bench of the Calcutta High Court in the case of Jnanada Sundari Chowdhurani v. Abdur Rahman Bhaia 33 Ind. Cas. 148 ; 23 Q.L.J. 281 ; 20 C.W.N. 438 ; 43 C. 603. I concur with the judgments delivered by the learned Judges at that Full Bench and consider that a second appeal does lie in a matter of this kind.
3. We now come to the merits of the case. The learned Settlement Officer found against the landlord upon the three issues which I have just recited. That decision was up-held by the Special Judge. The present appeal is preferred by the landlord. The question for determination is whether the tenant holds upon a consolidated jama or whether the original contract between him and the landlord was one for a certain area at a certain rate per bigha If the tenant can succeed in showing that the jama was a consolidated jama, then the landlord is not entitled to claim any enhanced rent upon the additional area. If, on the contrary, the landlord can show that the contract between him and the tenant was for a particular area at so much per bigha then if the tenant is found to be keeping more land than he was last paying rent for, the landlord is entitled to succeed under Section 52 of the Bengal Tenancy Act, having due regard always to differences in the standard of measurement. This is a simple issue, but the learned Special Judge in the Court below has considerably obscured it in his judgment and we find some difficulty in ascertaining what his precise findings are. There appears to have been an impression in his mind that it was incumbent upon the landlord to show either that there had been an actual measurement in consequence of which the last rental was fixed, or that there is a practice of measurement in the local area within which the holding is situated. I have had occasion before to dissent from this view of the law and I am still of the opinion which I expressed in another case between the same landlord and certain other defendants, namely, in Appeal from Appellate Decree No. 2669 of 1913. In my opinion it is not incumbent upon the landlord to prove that there was an actual measurement or that there has been a practice of measurement. If the landlord can show that by contract between him and the tenants it was agreed that a certain rental at a certain rate per bigha was to be paid for a certain area, then he is entitled to apply under Section 52, Bengal Tenancy Act, even if that area was agreed upon without any actual measurement or a practice of measurement within the perguna.
4. The learned Special Judge appears to me to have misdirected himself and the whole of his judgment is vitiated by this misdirection.
5. It appears that the landlord in the Court below produced a series of jamabandis, in some of which it is recited that the tenants hold a certain area at a certain rate per bigha. It is contended that there are also some receipts of recent times in conformity with these documents. The learned Special Judge does not find that these jamabandii are not genuine. If he had so found there would have been an end to the plaintiff's case. But he says that the jarnabandis cannot be relied upon because the landlord has failed to prove that they were based on a measurement alleged to have taken place in 1271 F.S. In my opinion this is clear misdirection.
6. The jamabandi of 1272, if it recites a certain rent for a certain area at a certain rate per bigha, is evidence of a contract and the learned Judge must take that evidence into consideration with the other evidence in the case and determine whether the tenancy was created on a consolidated rental. The landlord may ask the Judge to find on the strength of the jamabandi that the original contract was that the rent would vary with the area. If upon a consideration of the evidence adduced by the landlord the Judge declines to believe this and he finds that notwithstanding the jamabandi and the rent receipts the tenant has succeeded in showing that the original jama was a consolidated one, then the landlord cannot succeed. It is not clear what the learned Special Judge's findings really are. He does not clearly find that there was no measurement in 1271 F.S. He does not clearly find whether he disbelieves the jamabandis of 1272; he says that whether the jarmbawdis of 1272 were or were not based upon actual measurement they were certainly never operative. It is not understood what the learned Judge means by this. If he means that the jarnabandis are the landlord's papers and as such he is not inclined to place much reliance upon them and that the evidence on the side of the defendants shows that the original tenancy has continued, on a consolidated jama, then the learned. Judge must clearly say so. The appeal, therefore, will be decreed. The judgment of the learned Special Judge will be set aside and the appeal will be re-heard by him in the light of the observations now made. Each party will bear his own costs. Neither party with be allowed to call further evidence.
7. With regard to Appeals Nos. 512, 514, 574 and 939 the same remarks apply. In these appeals nobody appears for the respondents, These appeals also will be decreed and the cases will be re-heard by the learned Special Judge on the materials on the record. In none of these appeals will the parties be allowed to adduce further evidence.
Jwala Prasad, J.
8. I agree to the order proposed by my learned brother.