Calcutta High Court
Dulhin Golab Koer vs Balla Kurmi And Ors. on 2 February, 1898
Equivalent citations: (1898)ILR 25CAL744
JUDGMENT Beverley, J.
1. As I adhere to the opinion I expressed in Special Appeal No. 844 of 1395, and in another case which I cannot now trace, the papers must be laid before the Chief Justice in order that he may refer the hearing of the appeal to one or more of the other Judges of this Court under the provisions of Section 575 of the Code.
2. The point of law upon which Mr. Justice AMEBB Ali and I differ is shortly this.
3. In making a record of rights under Chapter X of the Bengal Tenancy Act, the Settlement Officer entered the respondents as belonging to the class of raiyats holding at fixed rates (sham muaiyin). The landlords objected to the entry under Section 106 of the Act; but their objection was disallowed, and on appeal the Special Judge has held that "the raiyats having proved their holdings for twenty years" (I assume that he means at a rent which has not been changed during that period) the presumption arises that their rent was fixed in perpetuity.
4. My opinion is that no such presumption arises upon the correct reading of either Section 50 or any other section of the Bengal Tenancy Act. The presumption which is created by Section 50, Sub-Section (2) is a presumption that the tenant has held at the same rent or rate of rent from the time of the Permanent Settlement. But that is a wholly different thing from a presumption that the tenant is a raiyat holding at fixed rates, as defined in Section 4 of the Act.
5. It is quite true that under Sub-section (1) of Section 50 the rent of a tenure or holding, which has not been changed from the time of the Permanent Settlement, is declared to be not liable to be increased except on the ground of an alteration in the area of the tenure or holding.
6. Section 6 of the Act also provides that when a tenure has been held from the time of the Permanent Settlement, its rent shall not be enhanced except under certain circumstances. But nowhere, so far as I am aware, does the Act say that such a tenure or holding is to be presumed to be held at a fixed rent or at a fixed rate of rent.
7. "Raiyats holding at fixed rates" constitute one of the classes of tenants mentioned in Section 4, and the expression is there defined to mean "raiyats holding either at a rent fixed in perpetuity or at a rate of rent fixed in perpetuity." By this expression I understand that the class of raiyats holding at fixed rates are those whose rent or rate of rent was fixed "in perpetuity at the time of the creation of the tenancy-not raiyats whose rent cannot be increased, except in certain circumstances, by reason of the presumption created by Section 50, Sub-section (2). A raiyat with a right of occupancy may, by virtue of that presumption, be entitled to hold at a rent which is not liable to be enhanced; but he does not thereby become a raiyat holding at fixed rates. By Section 18 certain incidents attach to the status of raiyats holding at fixed rates. Their holdings are for many purposes put on the same footing as permanent tenures. For instance, by Section 11 they are capable of being transferred or bequeathed like other immoveable property. But the holding of an occupancy raiyat is only transferable by custom, and the incidents of occupancy rights are set out and defined in different sections of the Act (Sections 23-26).
8. I hold, therefore, that a finding that a raiyat has held at the same rent for twenty years will not under Section 50 (2) raise any presumption that he belongs to the class of ' raiyats holding at fixed rates."
Ameer Ali, J.
9. The question involved in this second appeal is one of great importance, and I regret therefore I cannot agree with Mr. Justice Beverley in the construction of Section 50 of the Bengal Tenancy Act.
10. It appears that in the course of settlement proceedings in connection with the estate of the appellant, the respondents who are the raiyats of Mouzah Bishenpur were entered in the khatian as raiyats at fixed rents. The appellant thereupon presented a petition under Section 106 of the Bengal Tenancy Act to have the entry corrected, alleging that the respondents were not raiyats at fixed rents, but only occupancy raiyats. The respondents, on the other hand, pleaded that they were raiyats at fixed rents. The Settlement Officer of Hajipur rejected her petition, and the Judge on appeal has confirmed that order holding, as I understand his judgment, that, inasmuch as it has been proved that the tenants have been in possession of their lands without any alteration in their rents for the last twenty years, they must be presumed under Section 50 of the Tenancy Act to be raiyats at fixed rates of rent. In special appeal it is contended that Section 50, upon which the Lower Appellate Court has proceeded, does not apply to raiyats whose rents are fixed in perpetuity; that it only protects, under certain circumstances, occupancy raiyats from the enhancement of their rents, but that it does not relate to fixity of rent, and that therefore the District Judge was wrong in holding that the respondents were raiyats at fixed rents.
11. In order to consider whether this contention is well founded, I shall refer for a moment to the provisions of the different chapters before dealing with the meaning of Section 50 as I understand it.
12. Chapter II gives the various classes of tenants and defines the expressions "tenure-holder" and "raiyats."
13. Chapter III deals with the enhancement of rent of tenure-holders and with other incidents of their tenures.
14. Chapter IV deals with the incidents of holdings at fixed rents or rates of rent, but does not lay down any rule as to the ascertainment of such holding.
15. Chapter V deals with occupancy raiyats; Chapter VI with non-occupancy raiyats and Chapter VII with under-raiyats. We then come to Chapter VIII which is headed thus: "General provisions as to rent, rules and presumptions as to amount of rent." Section 50 which comes in this Chapter lays down in general terms the rules and presumptions as to fixity of rent. Sub-section 1 declares that "where a tenure-holder or raiyat and his predecessors in interest have held at a rent or rate of rent which has not been changed from the time of the Permanent Settlement, the rent or rate of rent shall not be liable to be increased except on the ground of an alteration in the area of the tenure or holding." But in the majority of cases it would be impossible to establish that a tenure or holding has been possessed at an uniform rent or rate of rent from the time of the Permanent Settlement. To meet such cases the Legislature provides in Sub-section 2 that "if it is proved in any suit or other proceedings under this Act that either a tenure-holder or raiyat and his predecessors in interest have held at a rent or rate of rent which has not been changed during the twenty years immediately before the institution of the suit or proceeding, it shall be presumed, until the contrary is shown, that they have held at that; rent or rata of rent from the time of the Permanent Settlement." It is clear, therefore, that these two Sub-sections deal with two different cases, (1) where the raiyat (I am omitting the tenure-holder) is able to prove that he and his predecessors in interest (the use of the word "predecessor in interest" is of importance) have been in possession of the holding at a rent or rate of rent which has not been changed from the time of the Permanent Settlement, it declares absolutely that his rent shall not be liable to be increased except on the ground of an alteration in the area of the holding (a provision applicable to all classes of tenants, see Section 52); (2) where the raiyat is able to show that he and his predecessors in interest have held at a rent or rate of rent which has not been changed during the twenty years immediately before the institution of the suit or proceeding, the law declares it shall be presumed until the contrary is shown that the raiyats had held from the time of the Permanent Settlement. In other words unless the presumption is rebutted "his rent or rate of rent" shall not be liable to be increased except on the ground common to all tenants, viz., alteration in the area. The Permanent Settlement is regarded as the starting point, and the result is that where it is found, either upon evidence or upon the basis of the statutory presumption provided in Sub-section 2, that the rent of the tenure or holding has not altered from its inception, it cannot be altered on any ground other than that provided in Section 52. If the rent of a holding has not altered since its inception, and it is not liable to enhancement except on certain grounds, it must necessarily follow that the rent is fixed in perpetuity. As already mentioned occupancy raiyats are dealt with in Chapter V; and Section 27 and the following sections lay down the rules relating to the enhancement of the rents of occupancy holdings. A reference to Sections 19 and 20 will show that occupancy raiyats are a class wholly apart. Section 19 runs as follows:
Every raiyat who immediately before the commencement of this Act has, by the operation of any enactment by custom or otherwise, a right of occupancy in any land, shall, when this Act comes into force, have a right of occupancy in that land.
16. Section 20 defines "a settled raiyat" and provides in Sub-section 7 for a presumption in his favour. This presumption, it is unnecessary to observe, is wholly different from that provided for in Section 50. Nor does it contain any exclusive reference to an occupancy raiyat. The general term ' raiyat" is used as defined in Section 5, and therefore to construe it correctly, one will have to read it thus: where a tenure-holder or a person who has acquired a right to hold land, etc. Any raiyat, therefore, by whatever name he may be called, if he pleads and proves the particular state of facts provided in Section 50, is entitled to its benefit.
17. As already observed, Chapter IV, which declares the incidents of tenancies held at fixed rents or rates of rent, lays down no rule for the ascertainment of such tenancies. Without expressing any opinion on the question whether such tenancies can be created now (since the passing of the Act) by contract, it seems to me that Section 18 must be read with Section 50. In my opinion the latter section lays down the circumstances under which tenancies at a fixed rent or rate of rent will be taken to exist, whilst Section 18 declares the incidents that will attach to them under the law. In considering whether Section 50 is applicable to raiyats holding at fixed rents or rates of rent, or whether it is only intended for the protection against enhancement of a certain class of occupancy raiyats, it is necessary to bear in mind another fact. A tenure-holder under the Tenancy Act has the right of transferring his tenure by sale, gift or testamentary devise. In connection with a tenure-holder, therefore, the expression predecessor in interest" includes a person from whom the holder for the time being derives his title as well by purchase, gift or will as by inheritance. A raiyat holding at fixed rent or rate of rent has the same right as a tenure-holder. Now in Section 50 the term "predecessor in interest" is used in respect of both tenure-Holder and raiyat. In the construction of the section the collocation of the words is of importance, and it seems to me that it would be against all principle of right reasoning to suppose that the Legislature intended the words "predecessor in interest" in connection with a raiyat in a different sense from that in connection with a tenure-holder.
18. As a matter of fact, the Act itself supplies an index to the meaning of the Legislature. For with reference to occupancy raiyats who do not (apart from custom) possess the right of transferring their holding, and whose interest can therefore only devolve by inheritance, it uses a totally different expression, carefully abstaining from the use of the words "predecessor in interest." Subsection 3 to Section 20 declares that "a person shall be deemed for the purpose of this section to have held as a raiyat any land held as a raiyat by a person whose heir he is." The difference in the phraseology here is most marked; that Section 50 applies to class (a) of raiyats mentioned in Section 4, and the incidents of whose tenancies are described in Section 18 will be apparent from the proviso which runs thus: "Provided that if it is required by or under any enactment that in any local area tenancies or any classes of tenancies at fixed rents or rates of rent shall be registered as such on or before a date specified by or under the enactment the foregoing presumption shall not after that date apply to any tenancy or, as the case may be, to any tenancy of that class in that local area unless the tenancy has been so registered." It shows clearly that the presumption provided for [by?] Sub-section £, and the scope of which is limited by the proviso, relates to "tenancies at fixed rents or rates of rents." Upon the evidence the sufficiency of which it is not open to us to consider in special appeal; the District Judge has found that the tenants have been holding their lands at rents which have not altered for the last twenty years. I am of opinion that under Section 50 he was right in giving effect to the presumption that they are holding at fixed rents or rates of rents. I am not inclined to interfere with this judgment.
19. Mr. Justice Jenkins to whom the case was referred made the following ORDER of reference to a Pull Bench:
20. This case, in consequence of a difference of opinion on the part of the two learned Judges before whom it came in the first instance, has been referred to me, under Section 575 of the Code of Civil Procedure, in order that I may deliver my opinion thereon; and as the case has been argued fully and ably by the learned Vakils who appeared, and the view I hold will necessitate a reference to a Full Bench, no object will be attained by my reserving judgment or elaborating my reasons.
21. The point for decision is, whether the Assistant Settlement Officer was right in recording the defendants as raiyats holding at fixed rates.
22. The facts of the case are fully set forth in the judgments of Beverley and Ameer Ali, JJ., and it is not necessary that I should recapitulate them now, but I would state that on the part of the appellant it has been conceded before me that the facts proved do give rise to the presumption contained in the 2nd Sub-section of Section 50 of the Bengal Tenancy Act. Now that Act is stated to be one passed for the purpose of amending and consolidating certain enactments relating to the law of landlord and tenant within the territories under the administration of the Lieutenant-Governor of Bengali; and by Section 4 a description, rather than a definition, is given of the classes of tenants to whom the Act is a applicable, among who are divided into the following classes:
(a)Raiyats holding at fixed rates.
(b)Occupancy raiyats.
(c)Non-occupancy raiyats.
The same Section defines "raiyats holding at fixed rates" by providing that the expression means "raiyats holding either at a rent fixed in perpetuity or at a rate of rent fixed in perpetuity.
23. The next section to which I may refer is the 18th, which describes the incidents of holding at fixed rates, and then I come to Section 50 upon which the present case turns, and whereby it is provided that.
1. Where a tenure-holder or raiyat and his predecessors in interest have held at a rent or rate of rent which has not been changed from the time of the Permanent Settlement, the rent or rate of rent shall not be liable to be increased except on the ground of an alteration in the area of the tenure or holding.
If it is proved in any suit or other proceeding under this Act that either a tenure-holder or raiyat and his predecessors interest have held at a rent or rate of rent which has not been changed during the twenty years immediately before the institution of the suit or proceeding it shall be presumed, until the contrary is shown, that they have held at that rent or rate of rent from the time of the Permanent Settlement.
(sic)
24. The expression "predecessors in interest," it is argued on the part of the defendants, is a strong indication in favour of the view they support. But I am unable to attach much importance to its use except to the extent that it is consistent with the construction for which they contend. But I think it is clear from the proviso to the second Sub-section that it was in the contemplation of the Legislature that a tenancy to which the presumption would be applicable should be capable of registration under a system which provided for the registration of tenancies, or classes of tenancies, at fixed rents or rates of rent; and the inference I draw from that is that a tenancy to which the presumption is applicable may be aptly described as one held at fixed rates.
25. The matter, however, does not rest there, for under Section 102, provision is made as to the particulars to be recorded in records of rights and settlements of rent. By Sub-section (b) it is provided that the particulars to be recorded shall include "the class to which the tenant belongs, that is to say, whether he is a tenure-holder, raiyat holding at fixed rates, occupancy-raiyat, non-occupancy-raiyat or under-raiyat, and if he is a tenure-holder, whether he is a permanent-tenure-holder or not, and whether his rent is liable to enhancement during the continuance of his tenancy."
26. It would seem that non-liability to enhancement was regarded for obvious reasons as a matter proper to be recorded; but there is no provision which requires or permits such a record in the case of a raiyat unless it be by the entry in the record of the fact that he is a raiyat holding at fixed rates, and it appears to me to be the intention of the Sub-section that the immunity from enhancement arising under Section 50 should be recorded by the statement that the tenant was a raiyat, holding at fixed rates. In connection with this section I may refer to Section 115, which provides that " when the particulars mentioned in Section 102, Clause (b) have been recorded under this chapter in respect of any tenancy, the presumption under Section 50 shall not thereafter apply to that tenancy," for it appears to me that this section also points to the same conclusion.
27. Further looking outside the Bengal Tenancy Act, 1885, one finds that the expression "raiyats holding at fixed rates" was one in use before that Act came into operation, for it appears both in Act X of 1859 and also in the Bengal Council Act VIII of 1869. I may particularly refer to Sections 3, 4 and 5 of both those Acts. Sections 3 and 4 correspond closely with Sub-sections 1 and 2 to Section 50 of the Bengal Tenancy Act of 1885, and it will be seen from Section 5 of those Acts that the raiyat in whose favour the presumption operated would be properly described as one holding at fixed rates. My own opinion, therefore, apart from authority, would be that upon the construction of the Act the record of the Assistant Settlement Officer was properly made.
28. I have, however, been referred to a prior decision of this Court where the same question arose, and it was there said in the course of the judgment:
We entertain grave doubts whether this class of raiyat [that is raiyat holding at fixed rates] can be created by the operation of Section 50. All that that section says is that a raiyat who has held at the same rent or rate of rent since the time of the Permanent Settlement shall not be liable to have his rent increased except on the ground of an alteration in the area of the holding. It does not say that such a raiyat is a raiyat holding at fixed rates, or that the tenancy shall be subject to the incidents of a holding at fixed rates as prescribed by Section 18 of the Act.
29. The learned Judges there appear to have arrived at their decision not without "grave doubts," but still it is a decision which clearly covers the present case, and it will, therefore, be necessary to refer the matter to a Full Bench. The question referred is whether, having regard to the case cited, the Assistant Settlement Officer was right in recording the defendants as raiyats holding at fixed rates.
30. Babu Raghunandan Prosad (for Babu Umakali Mukerjee) contended on behalf of the appellant that the raiyats were not entitled to the status of a raiyat at a fixed rate by merely showing that they paid uniformly for twenty years. The case of Bansi Das v. Jagdip Narain Chowdhry (1896) I.L.R. 24 Cal. 152 is in my favour, and that is a case referred to in the order of reference.
Macpherson, J.
31. Supposing the raiyat proved uniform payment for twenty years and was entitled to the presumption that he held from the Permanent Settlement at that rate, would any Court be justified in holding as a matter of fact that he does not hold at fixed rates?
Trevelyan, J.
32. Is it not a natural inference of fact?
Ghose, J.
33. Your case, I suppose, is that there must be an agreement?
34. Yes.---The tenant does not plead any agreement to hold at a fixed rate. Mere uniform payment for twenty years does not make him a "raiyat at fixed rent." Section 21 does not confer the right, and there is no other section conferring it. The statute should not be interpreted to confer a right which has not been expressly given. The case of Norendra Nath Sircar v. Kamal Basini Dasi (1896) I.L.R. 23 Cal. 563 lays down the rule.
35. Babu Horendra Narayan Mitra (for Babu Satis Chandra Ghose) who appeared for the respondent was not called upon.
36. The judgments of the High Court (Maclean, C.J., and Macpherson, Trevelyan, Ghose, and Ameer Ali, JJ.) were as follow:
Maclean, G.J.
37. The question we have to decide is whether the Assistant Settlement Officer was right in recording the defendants as raiyats holding at fixed rates. There was a difference of opinion between Mr. Justice Beverley and Mr. Justice Ameer Ali upon the point, and the case was referred to Mr. Justice Jenkins, who took the same view as Mr. Justice Ameer Ali, and referred the case to a Full Bench. As, however, it has been decided that a Judge of the High Court, sitting alone, has no power to refer a case to a Full Bench, the case has to be dealt with by the present Court, which has been specially constituted to hear it. For my part I think that the conclusion at which Mr. Justice Ameer Ali and Mr. Justice Jenkins arrived is the correct one, and I do not think I can usefully add anything to what they have said in their judgments. In my opinion the Assistant Settlement Officer was right in recording the defendants as raiyats holding at fixed rates and the present appeal must be dismissed with costs. There will be no costs of the abortive reference.
Macpherson, J.
38. I also think that the view taken by Mr. Justice Ameer Ali and Mr. Justice Jenkins is correct; when the question is whether a raiyat holds at a fixed rent, that is to say, whether the rent or rate of rent was fixed in perpetuity, and the raiyat proves that he had held the land at an -uniform unchanged rent or rate of rent for, say, a hundred years, the Court would, I think, be justified in presuming, apart from any statutory enactment, that the rent was fixed in perpetuity. In Sub-section 2 of Section 50 of the Bengal Tenancy Act the Legislature apparently recognise the difficulty a raiyat might have in proving that the rent was unchanged for any such length of time, and it provides on proof of certain facts for the presumption which might in my opinion be made if in fact the finding of the Court was that the rent had been unchanged since the time of the Permanent Settlement.
Trevelyan, J.
39. I agree in thinking that the Assistant Settlement Officer was right in recording the defendants as raiyats holding at fixed rates, and I prefer to place my decision entirely upon the terms of clause 2 of Section 50 of the Bengal Tenancy Act. It having been proved in this case that these raiyats held at a rate of rent which had not been changed during the twenty years immediately before the institution of the suit or proceeding, it ought to be presumed, in accordance with the provision of that clause, that they have held at that rent or rate of rent from the time of the Permanent Settlement. It seems to me, as Mr. Justice Macpherson pointed out, that the fact that they held at that rent or rate of rent, raises in fact the presumption, apart from the Act, that the original contract was a contract to hold at fixed rates, and it would be evidence from which any judge of fact could reasonably presume that there had been such a contract. That is what has been done in this case. I, therefore, agree in thinking that the Settlement Officer was right in what he did.
Ghose, J.
40. I agree in thinking that the question referred to us should be answered in the affirmative.
Ameer Ali, J.
41. I gave my reasons very fully on the previous occasion for holding that the Assistant Settlement Officer was right in recording the defendants as raiyats holding at fixed rates, and I have nothing more to add.
Maclean, C.J.
42. The appeal will be dismissed with costs, including the costs of all the hearing's in this Court.