Haluman Prasad Mahaseth vs Puran Tatma

This application in revision is directed against a decree of the learned Munsif of Madhubani passed in a suit for rent of 1341 to 1344 Fasli. As the value of the suit was less than Rs. 50 and the learned Munsif was vested with powers u/s 153, Ben. Ten. Act, no appeal lay against the decree and the petitioner who was the plaintiff in the suit has come up in revision. The plaintiff claimed rent at the rate of Re. 1-15-0 per annum including cess and also including 12 annas per annum as kathiari. The defendant admitted that he had been paying 12 annas as kathiari but asked the Court that if he could get relief under the law from the payment of kathiari he should get it, otherwise he had no objection in paying it. The learned Munsif has held kathiari to be an abwab and has therefore disallowed it and passed a decree at the rate of Re. 1-3-0 only. The learned Munsif seems to be under an erroneous impression that the law as to abwab-has been changed by the recent amendment of the Bihar Tenancy Act. This is not so. What was abwab before is abwab now and what was not an abwab before has not been made an abwab by the new Act. The only modification in this connexion has been as to the nature and amount of punishment for exacting an illegal abwab. The question therefore for consideration is whether kathiari is an abwab.

Kathiari is payable by the weavers to their landlords not on the basis of land occupied by them but on the basis of looms which they work on the land. In other words, it is a rent payable not on the basis of the area of the land occupied but on the basis of the work which is to be done on that land. It comes in the same category as the money realized by the landlords for the use and occupation of land at fairs at the rate of so many annas per animal according to -whether the animals exposed for sale are horses, camels, elephants or bullocks. In some cases the Settlement Department after investigation as to the history and nature of kathiari have entered it in the Record of Rights. A case like this came up before this Court where it was held to be an amount which was legally payable to the landlord. (See the case in Bhagwati Prasad v. Mahbub Momin A.I.R (1917) Pat. 652.) The Glossary of the Survey and Settlement Department published by Government describes kathiari as the synonym of bithouri or mutarfa.

In the remarks column it is mentioned that literally it is a consideration for settling. Mutarfa is ground rent and kathiari profession-tax according as the settlor takes up cultivation or merely trade. Bithouri may be either mutarfa or kathiari. It is practically rent for homestead land based on the profession which is carried on, on that land. The learned Munsif has not approached this case from this point of view. He has started with an idea that kathiari is illegal. In the plaint the plaintiff clearly stated that under the Record of Rights he was entitled to get Re. 1-15-0 which included kathiari also. The learned Munsif apparently did not examine the Record of Rights, and had he done so and if the statement of the plaintiff was borne out by the Record of Rights, it would have been obvious to him that this was not an abwab.

The case is therefore remanded to the learned Munsif. He will call upon the plaintiff to produce the Record of Rights, and if the rent there is Re. 1-15-0, whether the kathiari be mentioned or not, the decree will be at that rate. If it appears that the homestead land was otherwise belagan and that the kathiari is payable in respect of it, the plaintiff will be entitled to a decree for it. If the tenancy was created after the Record of Rights was published and this kathiari was one of the terms on which the land was settled, the plaintiff is obviously entitled to it. If these conditions do not exist, the plaintiff will not be entitled to a decree, not on the ground that it is an abwab but on the ground that it is in excess of the settled rent.

The application is allowed, but as there has been no appearance on behalf of the opposite party, there will be no order for costs.