Khundan Lal Singh and Others vs Nafizuddin and Others

Kulwant Sahay, J.—This appeal by the plaintiffs arises out of a suit instituted by them for enhancement of the rent of a tenure held under them. The plaintiffs are 16 annas darpatnidars of Mauza Saboodangi and that patni interest has been recorded in Khewat No. 2 of the record-of-rights. Within Mauza Saboodangi the defendants hold a permanent tenure comprising an area of 97.63 acres which is recorded in Khewat No. 7 under the plaintiffs at an annual rental of Rs. 106. The case of the plaintiffs was that this rental of Rs. 106 was not a fair and equitable rent and that they were entitled to an enhancement of this rent under the provisions of Section 7 of the Bengal Tenancy Act. They claimed an enhancement of Rs. 435-8-0 from Rs. 106, the admitted rental. The substantial defence of the defendants was that the tenure could not bear any enhancement and that the existing rental was a fair rental. The learned Munsif decreed an enhancement of Rs. 22-12-0 u/s 7, Clause (2) Bengal Tenancy Act. There was an appeal against this decree by the plaintiffs and a cross-objection by the defendants. The learned District Judge has upheld the decree of the Munsif.

In this second appeal the principal question for consideration is whether the income from the hat held on a portion of the tenure should be taken into consideration in assessing the fair rent. It has been found by the courts below that out of 97.63 acres of land which comprises the tenure, 66.08 acres and old parti lands, 7.98 acres are new parti lands, and 22.32 acres are cultivated lands and 1.25 acres comprises a road passing through the tenure. The Courts below have assessed the rent payable by the tenants to the tenure-holder at Rs. 5 per acre in respect of the cultivated lands and the new parti lands and they have assessed 6 annas per acre on account of the old parti lands, and they have found, after allowing a fair margin of profit to the tenure-holder, that the plaintiffs are entitled to an enhancement of Rs. 22-12-0 as stated above.

The hat in question was alleged by the plaintiffs to be held on 10.81 acres of land. A Commissioner was appointed by the Court below and he reported that the hat was a small one and it was held on a piece of land comprising 1.54 acres. This 1.54 acres was included in the old parti lands and a rental of six annas per acre was calculated for this land along with the other old parti lands. The plaintiffs contend that the tenure-holders are making a large profit out of the collections which they make from small holders and other persons who come to sell, their wares in the hat and also in some cases from the buyers of those articles, and their contention was that the profits which the tenure-holders derive from the hat ought to be taken into consideration in determining what amount of rent the tenure-holders receive, so that a fair proportion thereof may be allowed to the plaintiffs. Now the rights of the parties so far as the question of enhancement of the rent of the tenure is concerned are governed by the provisions of Section 7, Ben. Ten. Act. Sub-section (1) provides that the rent of a tenure-holder is subject to any contract between the parties, liable to enhancement up to the limit of the customary rate payable by the person holding similar tenures in the vicinity.

There is no question of any customary rate in the present case. Sub-section (2) then provides that:

where no such customary rate exists, it may, subject as aforesaid, (that is subject to any contract between the parties) be enhanced up to such limit as the Court thinks fair and equitable.

The enhancement in the present case comes within the provisions of Sub-section (2). Sub-section (3) then provides that:

in determining what is fair and equitable the Court shall not leave to the tenure-holder a profit less than 10 per centum of the balance which remains after deducting from the gross rent payable to him the expenses of collecting them,

and the Courts are directed to have regard to certain matters set out in Clauses (a) and (b) of this Sub-section. The question for my determination is whether the income from the hat in the present case comes within the term "gross rents" occurring in Sub-section (3), Section 7.

The Court below have held that the income from the hat cannot be said to be rent within the meaning of the term as used in Sub-section (3), Section 7, and I feel inclined to hold that the view taken by them is correct.

It is contended on behalf of the appellants that the word "rents" there is not used in the strict sense as it is defined in the Bengal Tenancy Act itself but it means all the rents and profits which the tenure-holders make from the tenure. This contention cannot be accepted if we consider the definition of "tenure-holder" as given in the Bengal Tenancy Act itself. Section 5, Sub-section (1) of the Act defines ''tenure-holder'' as primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants.

The definition of the term "tenure-holder" therefore clearly indicates that tenure is primarily created for the purpose of collecting rents from tenants already established on the land or for bringing lands under cultivation. The term "rents" as used in Sub-section (3), Section 7 must have the same sense as it bears in Section 5 of the Act. Now rent has been defined in Section (3) Sub-section 5, Ben. Ten. Act, as meaning whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of land held by the tenant and "tenant" under the definition of the term given in the Ben. Ten. Act, means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person.

The question is whether the fees or tolls paid by the sellers or purchasers in the hat held over a portion of the land comprised in the tenure come within the definition of the term "rent" and whether the persons who sell goods in the hat are tenants within the definition of the term as used in the Ben. Ten. Act. The evidence shows that in this hat people come to sell paddy and the tenure-holders, according to the evidence given by the plaintiffs themselves, realise 2� seers of paddy per cart load sold from the sellers and 2 annas per cart from the purchasers. Then the evidence shows that people come to this hat to sell cloth, curds, oil, salt, vegetables and jute. The tenure-holders realise about six pies or 1 anna per shop in respect of cloth shops and a few pice from the curd sellers, oil and salt sellers; they also realise one pice worth of vegetable for their own consumption from the vegetable sellers, and when sometimes jute is brought they realise 2 annas per cart from the sellers of jute and 2 annas from the buyers thereof. By no means can the persons who come to the hat to sell paddy or cloth, or curd or salt or vegetable can be held to be tenants, nor can the fees or tolls realised be classed as rents within the definition of those terms as given in the Ben. Ten. Act.

As was pointed out in the Full Bench case of the Calcutta. High Court in Secretary of State v. Karuna Kanta [1907] 35 Cal 82 in the judgment of Mookerjee, J., on p. 98, the fees such as those realised in the present case can by no stretch of language be described as rent. The persons who come to sell their goods in the hat are licensees and not lessees and the broad distinction between a lessee and a licensee is that while in the case of the lessee there is a transfer of interest in the land to the lessee; in the case of a licensee there is no such transfer of interest. I; is therefore clear that what is realised on account of the sale of goods in the hat is not rent and therefore cannot be taken into account in determining the amount of enhancement in the present case. Reference was also made on behalf of the appellants to the case of Bungsho Dhur Biswas v. Mudhoo Mohuldar [1874] 21 WR 383.

That case was considered by Mookerjee, J., in the Full Bench case just cited. That was a case in which the plaintiff sought to recover a sum of money under a contract by which he had let out his right to collect rents in a hat to the defendant. The defence raised was that a suit of that nature was not maintainable and having regard to the provisions of Regn. 27 of 1793 their Lordships held that Regn. 27 of 1793 was no bar to the suit. In one portion of their judgment however an observation was made to the effect that the collections which the plaintiff let in farm to the defendants were in the nature of rent which the owner of the land receives from persons who come to sell goods on his land. The term "rent" there was used not in the strict sense in which it is used in Section 7, Ben. Ten. Act. I am therefore of opinion that the view taken by the learned District Judge on this point is correct.

A point was taken by the learned advocate on behalf of the appellants that the Court below was wrong in discarding certain entries made in the Cess Valuation Roll based on a return submitted by the plaintiffs themselves. The learned Judge has rightly held that that piece of evidence should not be taken into consideration in determining the question of assessment in view of Section 107, Cess Act. Attention may also be drawn to Section 95, Road Cess Act, by which the Road Cess return cannot be used in favour of the person filing the return; it can only be used against him and not in his favour. There is no substance in this appeal and I dismiss it with costs.