Bhola Pandey and others vs Ram Bilas Pandey and others

Jwala Prasad, J.—The defendants are the appellants. They are aggrieved by the decision of the District Judge of Shahabad, dated the 19th March 1920, who in agreement with the decision of the Munsif, dated the 28th April 1919, has decreed the plaintiffs'' Suit No. 9 of 1918 for arrears of rent.

The area concerned in the suit is a holding of 5 bighas 2 kathas 14 dhurs in a village Sabbalpur (Touzi No. 818). The holding bears Khata No. 1641 in the last Survey Record of Rights and Khasra Nos. 2421, 1494 and 1454. The rent claimed is with respect to the year 1324 Fasli at the rate of Rs. 4 per bigha. The defendants-appellants contend that the plaintiffs are not entitled to recover rent at 3 rate exceeding 14 annas 6 pies per bigha. The only question, therefore, before us is what is the rate of rent for the holding in question. The point raised in the present case is extremely difficult and has no authority or precedent to guide us in the determination thereof.

In order to appreciate the point raised in the case it is necessary to give briefly the history of the land in question. The estate Sabbalpur to which the land in question appertains belonged at one time to Bhai Haran and Ajit Singh each owning 8-annas share in it. Bhai Haran mortgaged his Zamindari rights to certain persons keeping his possession over 141 bighas odd of zarait land. Subsequently, the mortgagees came to purchase the mortgage interest of Bhai Haran and 141 bighas of zarait land also, by transfer came, to be held by different persons. The defendant''s father came to hold 4 bighas 15 kathas of the zarait land which is the subject-matter of dispute in the present case. The Government revenue of the entire estate used to be paid by the transferees of the Zamindari interest, inasmuch as they got their names registered in Register D of Collectorate. The holders of the zarait land aforesaid did not pay in Government revenue and their names were not registered in Register D, inasmuch as they did not hold any aliquot part of the estate but only small parcels of land in bighas and kathas, there being no provision in the Land Registration Act for the registration of parcels of land.

The defendants hold the land in question by virtue of a sale-deed (Exhibit C) dated the 17th November 1878 in favour of their ancestors with respect to 12 bighas of land of which the disputed 4 bighas odd is a part.

The result was that the holders of the zarait land including the defendants never paid revenue to Government or rent to the proprietors whose names were registered in the Collectorate. The entire revenue used to be paid by the recorded proprietors. On behalf of the recorded proprietors, therefore, a suit was brought in the year 1898 to recover from the holders of the zarait land, including the defendants proportionate, revenue with respect to the land held by them by way of contribution; that litigation 9nded with the judgment of the High Court of Calcutta, dated the 22nd April 1904, confirming those of the Munsif and the District Judge of Shahabad. The reason for refusing the recorded proprietors a decree for contribution was stated by the High Court to be that there was "nothing whatever to show that the assessment of Government revenue was made on any basis or that at the time of the Permanent Settlement there was any such calculation by which the revenue for which zarait land was liable was held to bear to the total revenue assessed the same proportion as the area of these lands nor to the total area of lands then under calculation." Their Lordships of the Calcutta High Court further held that the calculation on such a basis "is entirely contrary to the principles under which the revenue was assessed on estates at the Permanent Settlement". The High Court dismissed the appeal "leaving it to the appellants to take steps as they may be advised in the Revenue Courts in order to have the revenue assessed on their share in the estate or on the zarait land held by the defendants".

Following up the suggestion of the High Court, some of the recorded proprietors, who were plaintiffs'' in that litigation, instituted proceedings before the Collector for a partition of the estate. Objections of various character were made by different persons objecting to the partition of the estate. We are, however, not concerned with all of them, except those which relate to the objections to the partition of the estate on the ground that the original proprietors had alienated their zarait land without specifying the Government revenue payable by them. That objection was disposed of by the Deputy Collector on the 17th of January 1915 (Exhibit K) and by the Commissioner on the 17th June 1916 (Exhibit 7). The objection was treated as one u/s 14 of the Estates Partition Act (Act V of 1897) and was overruled and the partition of the estate continued. The Commissioner does not refer to this point at all, but the following observation of the Deputy Collector appears to relate to the zarait lands in question. Says the Deputy Collector - "What is the present condition of the 141 bighas and 13 kathas of zarait lands alluded to above. Nearly 40 bighas 11 kathas and 12 dhurs have already been consolidated with the tenancy lands with attested rents and the remaining 101 bighas and 1 katha and 8 dhurs are held by no less than 43 men. The next question is what should be the status of these men. Are they to be treated as putni proprietors, or tenure-holders or tenants? Apparently they do not appear to have paid any rent or revenue since the transfer of those lands but when they were served with notices by this Court at the instance of Babu Mahanand Sahay calling on them to state if they had any objection to contribute the proportionate revenue in the shape of rent through the existing proprietors of Bhai Haran Singh''s patti, they generally expressed their willingness to pay rent up to the extent of the proportionate revenue The fact that the holders of over 40 bighas of such lands have already allowed themselves to be treated as tenants in the recent Record of Rights is also a significant one. When Babu Mahanand Sahay and others sued them for the recovery of the revenue paid for them by them and the case went up on appeal before Mr. Justice Brett and Mr. Justice Woodroffe they stated that they had no objection to pay rent up to the proportionate revenue. Thus it is quite clear that the holders of the 101 bighas and odd kathas of the zarait lands have no objection to pay lagan to the proprietors up to the extent of the proportionate revenue, which has been ascertained at Rs. 92-1-9 of 101 bighas 1 hatha and 8 dhurs, the calculation being made at the total assets due from them, viz., Rs. 423-2-6. Some of these lands have been settled by the farzidars with the tenants, the rents paid by whom have already been alluded to in the recent Record-of-Rights, and in these cases the alluded rents have been taken on the assets of those lands; in the case of lands which are still in the khas possession of the farzidars the rate of assessment has been fixed at Rs. 4 per bigha on an average, regard being had to the rents paid for similar lands with similar advantages in their vicinity. The details of 101 bighas 1 iatha 8 dhurs are given below. Total assets Rs. 395-2-6; area 101 bighas 1 katha 8 dhurs. The proportionate revenue per bigha works out to 14 annas 6 pies at which the farzidars shall have to pay the proprietors of Bhai Haran Singh''s patti for the lands held by them. To me it seems that the status of the present erazidars is just like that of mokarraridars when they will pay a small rent equivalent to the proportionate revenue on the lands held by them, as at the time of the creation of the mokarrari leases a handsome salami is taken by the landlords. In the present case also a sum of Rs. 10,000 was paid by Janki Prasad Singh at the very outset Thus it will appear that these erazidars are not independent of the proprietors and their lands form part of the Touzi, the entire revenue on which has been hitherto paid by the registered proprietors without intermission. Thus again for the safety of the Government revenue and its punctual realisation it would be most unwise to treat such a large number of men each holding one or two bighas of lands as putni proprietors, specially when they had hitherto betrayed by their action and without utter reluctance to be brought under the category. In the circumstances stated the proprietors of the patti, Bhai'' Haran Singh and Lachmi Narain Singh, cannot further for the purposes of the partition be considered as out of possession of 101 bighas 1 katha and 8 dhurs of the zarait lands when they have kept their proprietary title alive by paying the entire revenue all along."

The plaintiffs also who were defendants in the litigation referred to above, which was finally concluded by the judgment of the High Court, in paragraph 3 of their written statement (Exhibit E) gave an idea of what the proportionate revenue should be namely, 9 annas 8 dams Government revenue and 2 annas 4 dams road-cess (Total 11 annas 12 dams).

In the year 1901, on behalf of the plaintiffs a Road Cess Return (Exhibit E) was filed showing the rate of rent of the zarait land, held by them as well as by the defendants, to be Re. 1 per bigha. The Survey Record of Rights, which was published on 9th of August 1912 (Exhibit I, J. and 14) shows that the defendants were recorded as tenure-holders and the land in suit was shown as bakasht erazidars. No rent was mentioned in the column provided for it. The batwara raibandi and the khasra showed that the lands in suit were assessed at the rate of Rs. 4 per bigha and that they were allotted to the patti of the plaintiffs. The plaintiffs thus became, after the partition in which delivery of possession was effected in 1917, the 16 annas proprietors of the estate in which the lands in suit are situate. The present suit was instituted soon after the batwara dakhaldehani for the arrears of rent for the year 1324 Fasli. The claim of the plaintiff is, therefore, based entirely upon the batwara khasra and the khatian.

The defendants'' case is that they were proprietors in this estate to the extent of the zarait lands held by them and they are not liable to pay to the plaintiffs anything beyond the proportionate revenue, and their case is based upon the remarks of the Deputy Collector in his order of the 15th of January 1915, in which he said that the proportionate revenue per bigha of the zarait lands would be 14 annas 6 pies. The defendants have accepted their status to be that of tenants, and have abandoned the position of proprietors which they originally claimed. They may be proprietors within the definition of the term in section 3, clause (v) of the Estates Partition Act, as being owners of the land in dispute, whether or not they were recorded proprietors of the estate. The word "recorded-proprietor" had a peculiar meaning in the Partition Act as being a person whose name is registered on the Collectorate''s General Register of the revenue paying lands as proprietor of an estate or of any share or interest therein [clause (vi) of section 3]. The defendants were certainly not the recorded proprietors and as such they were not entitled to claim partition of their share in the estate to the extent of the zarait lands held by them (vide section 5). They were also not entitled to have a separate estate allotted to them on partition at the instance of the other recorded proprietors (vide section 5). "An estate" means all lands which are borne on the Revenue Roll of a Collector as liable for the payment of one and the same demand of land-revenue. The lands held by them were certainly responsible for the payment of Government revenue, inasmuch as they were included in the estate, and when an estate is declared to be partitioned all the lands appertaining thereto have to be taken into account and must be allotted to the recorded proprietors of the estate. The proceedings start with a survey of all the lands and a preparation of the Record of Rights under Chapter VI of the Act. u/s 45 the Deputy Collector is bound to make a survey and prepare a record of existing rents and other assets of all lands included in the estate. Similarly, u/s 46, clause (d), the assets of the land in question had to be determined and stated. u/s 47 the Record of Rights prepared is published, and that record shows not only the existing rents but also the other assets of the estate. The Record of Rights prepared under the Chapter is then locally published u/s 48 of the Act, and a copy thereof is given to each landlord and tenant of the entries relating to the estate, tenure or holding. These provisions are similar to those contained in the Bengal Tenancy Act, Chapter X which relates to the preparation and publication of the Record of Rights between the landlord and the tenant. The difference between the two records, the one prepared under the Estates Partition Act and the other under the Bengal Tenancy Act, is this that, while the latter records the status of the landlord and tenant, the former records the status of a proprietor and other persons who need not necessarily be landlords or tenants. In the Bengal Tenancy Act Records, the rent stated by the landlord and that stated by the tenant and as attested by the Survey and Settlement Officer is recorded. In the Record of Rights prepared under Chapter VI of the Estates Partition Act, in addition to the above, the assets of all other lands are recorded. There was no relationship of landlord and tenant between the plaintiffs and the defendants before the partition of the estate. In the partition proceedings the defendants could not be allotted a separate estate representing the interest owned by them in the estate, inasmuch as they did not hold any share of the estate but only some parcels of lands. The lands held by them, as observed above, had necessarily to be taken into account and those lands were allotted to the share of the recorded proprietors. The assets of those lands had to be determined in order to effect the partition of the different interests held by the several recorded proprietors. The word "assets" has been defined in section 3 clause (xv) to be "in the case of land held by cultivating raiyats the rent payable by them," and "in the case of land which is occupied by a proprietor the rent which might reasonably be expected to be payable by cultivating raiyats if the land were occupied by them". The lands in the present case were held by the defendants as proprietors and the assets mentioned in the partition Record of Rights is the rent which might reasonably be accepted to be payable by the occupancy raiyats; in other words, Rs. 4 per bigha mentioned as assessment of the land in question by the batwara records is one which the holders would have, therefore, to pay to the proprietors for the use and occupation of the land. The Record of Rights prepared under Chapter VI of the Estates Partition Act raises a presumption in favour of its accuracy, in the same way as the Record of Rights prepared under the Bengal Tenancy Act, and every presumption as to its having been carried out according to the rules and of its having been duly published will arise in its favour. From the fact that the publication of the Record of Rights has not been questioned in the present case and as held by the Courts below, the defendants must be presumed to have knowledge of the partition proceedings. The Record of Rights raises a strong presumption that the rent payable by them to the recorded proprietor with respect to the land in question must be that entered in the batwara papers. The Survey Record of Rights, which was finally published in the year 1912, also defined the status of the defendants as that of tenure-holders and not of proprietors. Whatever the position of the holders of the zarait lands might have been originally when the zarait lands and the Zemindary rights with respect to the lands held by the tenants were separately treated by the original proprietor of the estate, Bhai Haran Singh, it is clear that during the survey and the partition proceedings, that is, during 1912 to 1916, the defendants gave up their status, if any, of holding the lands as proprietors and accepted the position of tenure-holders or tenants, in other words, they accepted their liability to pay rent to the recorded proprietors of the estate. Had they been recognised as proprietors of the estate they would have been made liable to pay revenue to Government and the only proceeding in which their status as proprietors could be recognized was the partition proceeding which prepared the khewats, that is, the interest held by the proprietors, the Record of Rights, that is, the interest held by the intermediate holders of lands, namely, the tenure-holders and tenants and others. The Estates Partition Act has not recognized them, and in fact could not recognize the defendants as proprietors of the estate. This liability to pay rent is also not disputed before me. It has not been disputed in the Courts below also.

The only question raised by the defendants is that they should pay rent calculated at the rate of the proportionate revenue payable with respect to the lands in suit. The Deputy Collector, no doubt, at one place observed on the 15th of January 1915 that the proportionate revenue of the zarait lands would be 14 annas 6 pies. This, no doubt, the defendants admitted and they were willing to pay and are still willing to pay. The plaintiffs, on the other hand, say that the responsibility to pay revenue directly to the Government is now borne by them and for the default of even a pice in the payment of revenue made by them, the entire interest of the estate held by them would be jeopardized and sold up by the Collector. The revenue sale will not in any case affect the interest of the defendants, but they will continue to hold the lands in suit as intermediate holders, namely, tenure-holders or tenants. Therefore, the plaintiffs contend that the risk that they have now undertaken, or which has been imposed upon them by the partition proceedings by being directly liable to the Government for the payment of revenue, must be compensated by allowing them the rate of rent of the lands from the defendants in the same way as that payable by the tenants of similar lands in similar circumstances. It may be, on the other hand, contended by the defendants that the assets determined by the Collector in the partition proceedings and the Record of Rights prepared by him are for the purpose of the partition and cannot be a binding and conclusive document determining the relationship between the plaintiffs and the defendants, or for the matter of that between the proprietors and the tenants. There is a good deal of force in this contention. It is true that the batwara Record of Rights is not conclusive. It raises a presumption and a rebuttable presumption. The plaintiffs, therefore, had got in their favour the presumption of the entries in the batwara papers as to the rate of rent payable by the defendants to them. They have also the presumption of the Survey Record of Rights of their liability to pay rent. It is open to the defendants to rebut that presumption. They must pay a fair and equitable rent for the use and occupation of the lands under the plaintiffs who are the recorded proprietors and are liable to pay revenue to the Government. What must be that fair and equitable rent? The Civil Court will not have the same advantages as the Revenue Court had in the partition proceedings to determine the fair and equitable rent of the lands in consideration of the rent payable by the lands in the vicinity and with similar advantages. The Deputy Collector in his order of the 15th of January 1915 has also referred to the rate of Rs. 4 as payable by the tenants. The Survey Record of Rights has also determined the rate of Rs. 4 with respect to 40 bighas of the lands out of 141 bighas of zarait lands. The rate of rent of the other lands in similar circumstances has also been found by the batwara to be Rs. 4 a bigha. Therefore the rate now claimed by the plaintiffs based upon the entries in the batwara proceedings cannot be said to be inequitable and must be presumed to be fair. The defendants, no doubt, could succeed if they were in a position to show that they are not liable to pay under any express provision of law any rent in excess of the proportionate revenue upon these lands but they have failed to do so. Nowhere in the Partition Act has it been stated that the original proprietor of certain parcels of land should pay rent to the recorded-proprietor, in whose takhta his lands fall, proportionate to the revenue. If they were to pay rent proportionate to the revenue they will acquire the same status as a proprietor; but under the partition their position is now to be derogated to that of a tenant. In the case of land which has fallen to the patti of one proprietor, and is allowed to remain in occupation of another proprietor, Chapter IX, sections 64 to 66 declare that the rent payable by the latter to the former would be on the basis of the assets recorded by the Deputy Collector. On that principle also the defendants in the present case should pay to the plaintiffs rent in accordance with the Survey Record of Rights. As to the value of the Records of Rights prepared under the Estates Partition Act, vide, Raziuddin Hussain v. Taharat Hussain (1912) 16 C.L.J. 19: 13 I.C. 498, Janakdulari Kuar v. Bindeswari Gir (1920) 1 P.L.T. 374: 5 P.L.J. 456: 57 I.C. 328, Nandkishore Singh v. Mathura Sahu AIR 1922 Pat. 193: 3 P.L.T. 13: 65 I.C. 586, Gulab Chand v. Salek Hussain (1916) 5 P.L.W. 6: 36 I.C. 513, Debi Lal Sah v. Ram Bibeki Singh (1921) 63 I.C 194, Jagdeo Narain Singh v. Bulaki Gope (1921) 2 P.L.T. 343: 63 I.C. 226. The principle may also be deduced from the decision in the case of Nawab Begum v. Rustum Khan 2 Agra. H.C.R. 149.

Therefore, it appears to me that there is no error in law in the decision of the Courts below. I have already said that the case is of first impression. I am also alive to the principle that the rate of rent payable by a tenant depends upon the contract, expressed or implied, between the landlord and the tenant. In the present case, there is no such contract. A contract may be implied by a course of conduct evidencing the payment of a particular rate of rent. This is not a case of this kind. No rent was previously paid by the defendants to the plaintiffs. The rate of rent payable by a tenant to the landlord may also be determined in a suit and the decree passed in the suit may be the foundation determining the contract between the parties to pay rent at the rate embodied in the decree. This also is not the case here The position claimed by the defendants was that of a proprietor of certain zarait lands. This, of course, is a case where by the operation of law the defendants occupy the land within the ambit of the Zamindari of the plaintiffs and they are liable to pay rent for the use and occupation of the same. The rent has been determined in the proceedings under the Estates Partition Act to be that payable by the lands of similar nature in the vicinity. The defendants must, therefore pay the fair and equitable rent as embodied in the Record of Rights. On these principles I have been able to overcome the difficulty which I felt in the beginning in the case, and I confirm the decrees passed by the Courts below with costs.

Mr. Parmeshwar Dayal points out with respect to Khata No. 752, in Suit No. 9, that there has been a mistake in the preparation of the decree in the Court below, inasmuch as that decree is not in accordance with the judgment. The judgment mentions Rs. 1-8 for the entire holding whereas in the decree the rent has been calculated at the rate of Rs. 1-8 per bigha. The mistake, if any, should be corrected by the Court below and the decree must be brought in accordance with the judgment.