Aghori Koeri and Others vs B. Kishundeo Narayan Mahta and Others

Adami, J.—This appeal arises out of an acquisition of certain lands for the expansion of the Agricultural Farm at Pusa. The Deputy Collector, in respect of the occupancy lands, awarded full compensation to tenants. The landlords made, a reference against this decision to the District Judge and the result was that the District Judge found that out of the compensation paid to the occupancy raiyats one-fourth should he paid to the landlords on the ground chiefly that occupancy holdings were not transferable without the consent of the landlords and on the ground that the landlord was entitled to compensation by reason of his right of reversion and right to enhance the rents.

Mr. Janak Kishore, on behalf of 72 of the tenants only, raises this question before us, namely, whether the landlords were entitled to receive this 25 per cent, out of the compensation awarded to the tenants.

Now, the Land Acquisition Deputy Collector in his note of reference stated that the village note mentioned that the holdings were transferable without the landlord''s consent and that there was no evidence adduced to show that salami was payable on transfer by the raiyats. The learned District Judge has come to a finding in the opposite directions He states that the village note does not support the custom of transferability without the landlord''s consent and that it has been the custom to pay salami of 25 per cent, on transfer of an occupancy holding. For us to be able to decide this appeal, it is necessary to have before us good evidence both as to the custom of transferability and as to the payment of salami. Such evidence is not on the record. The village note even is not before us although both Courts have referred to it. We have looked at sufficient to show to our satisfaction whether there is the custom of transferability or not.

For a right decision of this question, whether any amount should be taken out of the compensation awarded to the tenants to be paid to the landlords it is necessary to decide whether the custom of transferability exists. It is also necessary to find out whether the landlords had at the time of the acquisition the right to enhance the rent within 20 years of that date; and we must send back this case in order that full evidence may be taken to enable a decision on these points. It has to be remembered that if there is no custom of transferability without the consent of the landlords, the landlords will be entitled to some compensation for the right this implies, and at the time the restriction is detrimental to the tenant''s claim to full compensation. If, on the other hand, there is a right of transferability without the consent of the landlord, the landlord will not be entitled to a share in the compensation.

Then as to the question of enhancement, if, within the next 20 years, the'' landlord could have enhanced the rent, as shown by Maclean, C.J., in the case of Bhupati Roy Ghowdhury v. Secretary of State 5 C.L.J. 662, the landlord would be entitled to some amount of compensation, although, as pointed out by the learned Chief Justice, it will be difficult to estimate the money value of that compensation.

Let, therefore, the case be sent back to the District Judge in order that the following two issues may be decided:

(1) Whether a custom of transferability without the consent of the landlord exists in the village, and

(2) Whether the landlord had accruing to him within the next 20 years the right to enhance the rent under the Bengal Tenancy Act?

After taking evidence on these issues and coming to a finding, the District Judge will return his finding to this Court. The parties will be at liberty to adduce such evidence as may be necessary to prove their respective cases. The finding should be returned to this Court within two months from the date of the receipt of the record.

Costs will abide the result of the appeal.

Das, J.

I agree.