Mahanth Dwarka Dass vs Bhekhu Mahton and Others

In the Record of Eights of Ghanipur in Muzaffarpur district the occupier of the land covered by khatian No. 254 is recorded as a settled raiyat of the village liable to pay rent at rupees 53-2.6 a year. There is an entry to the-effect that at the end of the year the raiyat receives Rs. 12 as haqazri on condition of his having worked for the landlord. The Record of Eights does not specify the nature of the duty; but it is agreed that the duties which were rendered were those of a jeth raiyat assisting the landlord in the collection of rent. The holding has now been partitioned with the result that there are three holdings, one occupier having taken half of the original holding and two other a quarter each. The landlord instituted three suits for rent claiming the proportionate amount, Rs. 53.2-6, from each of the tenants; but the tenants contended that the right to deduct Rs. 12 was an incident of the tenancy so that the occupier of the half holding was entitled to deduct Rs. 6 and the other two raiyats were entitled to deduct Rs. 3 each.

The landlord had-dispensed with the services of the jeth raiyat and he therefore claimed that h& was entitled to the full rent of the holding. The Munsif held that as the right to deduct Rs. 12 was entered in the Record of Right a in a column which contained the incident a of the tenancy, this right must be considered an incident of the tenancy, which must be treated as a grant burdened with service, of which the tenants were entitled to take advantage so long as they were willing to render the services, whether the landlord required the services or not. The decision was affirmed on appeal by the Subordinate Judge; and the landlord has now come to this Court in second appeal.

A preliminary ground of objection to the appeals is taken on behalf of the respondents that the provisions of Section 153, Bihar Tenancy Act, bar a second appeal in this case. The respondents rely on the decision in Safait Hossain v. Waizudin A.I.R (1917) . Pat. 504 wherein it was held that mafi allowed to a jeth-raiyat in lieu of wages was not rent, and that a dispute as to whether the mafi could be claimed or not was not a dispute relating to the amount of rent payable for the holding. It does not appear from the judgment in that case that the jeth-raiyat had been relieved of his duties or that right to pay lower rent was claimed irrespective of whether the duties had been performed or not. In the present case where the jeth-raiyat has been relieved of his duties by the landlord, the question of whether the tenants are liable to pay at the rate of Rs. 53.2-6 or at Rs. 41-2.6 should, in our judgment, be treated as a dispute regarding the amount of rent annually payable by the tenant. It is also to be observed that the claim of the tenants which has been allowed by the Courts below amounts to a claim that their holding is something other than an occupancy holding, that they hold under a grant burdened with service; and the dispute regarding the status of the tenants raises a question relating to an interest in land which has been decided by the decree under appeal. We consider therefore that this appeal is admissible u/s 153, Bihar Tenancy Act.

It is pointed out on behalf of the appellant that the Courts below are in error when they regard the entry in the Record of Rights as describing this right to deduct Rs. 12 on condition of rendering of services as an incident of the tenancy. The learned Munsif has remarked that this mafi is not entered in the column of rent, and he goes on to say that if that had been so the natural conclusion would have been that a certain amount of rent was to be deducted in lieu of wages; but in fact the entry is in the column which has been provided for giving particulars regarding the rent, although that column also contains special conditions and incidents, if any, of the tenancy. It certainly cannot be said that the entry in the Record of Rights describes this right to mafi unequivocally as an incident of the tenancy. The question remains of whether in these circumstances the Courts below could properly come to the conclusion that this tenancy was a service tenure a grant of land burdened with service.

Mr. A.K. Mitter on behalf of the appellant relies upon the decision of the Privy Council in Venkata Narsinha v. Sobhanadri (1906) 29 Mad. 504 wherein it was held that the grant of village as a service mokhasa. to a naik who undertook to be present with 14 peons at harvest time and to accompany the zamindar carrying spears, muskets and other weapons when he went hunting, was a grant burdened with service; and that it was not resumable when the zamindar dispensed with the services because he found that the inconvenience'' arising from the expense of maintaining this following was greater than the service were worth. The tenure described in that case was a tenure of a feudal nature having, no proper analogy with the case of a zamindar who appoints a considerable raiyat of the village to give him some assistance in his collection, and allows him to deduct his wages from his rent, thereby saving, the raiyat from the trouble of recovering, his wages in the zamindar''s office. The services to be rendered in the cases with which we are concerned here have more analogy with the services of a gorait, the nature of which was discussed in Radha Prasad Singh v. Buddu (1895) 22 Cal. 968. In that case the gorait held a jagir which had descended from father to son; the son had been allowed to retain possession without rendering services to the zamindar and the zamindar could not prove the terms of the grant. It was held by the Calcutta High Court that the facts found did not legitimately lead to the inference that the tenure was of a permanent character, and it was held that the zamindar was entitled to resume on dispensing with the services of the gorait.

In the present case the facts apparent from the entries in the Record of Rights from which the inference has been drawn that the zamindar is not liable to resume are as follows: The defendants'' ancestor was an occupancy raiyat; he did not hold a service tenure but an occupancy holding the rent of which was settled at Rs. 53-2-6 annually. He was appointed jeth-raiyat and on condition of rendering such services he was permitted to deduct Rs. 12 from the amount of rent payable. This is not described in the Record of Bights as an incident of the tenure but as the mode in which the rent not payable has been fixed; and the entry cannot properly be treated as indicating that the holding is something other than an occupancy holding or that it is a jeth-raiyati tenure.

There is nothing in the entry from which it can be deduced that this holding is a jeth-raiyati jagir; or that it is anything but an ordinary occupancy holding of which the annual rental including cess is Rs. 53.2-6. The Courts below in coming to the conclusion that this was a grant burdened with services have also omitted to notice the very important fact that the holding has been partitioned. They have divided up the amount allowed as remuneration to the jeth-raiyat on condition of his performing services so that one of the tenants is treated as being half of a jeth-raiyat and each of the other two as a quarter. This is altogether inconsistent with the theory that the holding is something other than an occupancy holding and that it is in the nature of a jagir for a village servant. It is also to be observed that throughout the case there has been no suggestion that the jeth-raiyat occupied any position like that of a village servant such as a Chaukidar, or that the services which he rendered were anything but purely personal services to the zamindar. The zamindar is ordinarily entitled to dispense with such services at his pleasure, as was held in Radha Prasad Singh v. Budhu Dusadh (1895) 22 Cal. 938.

We consider that it must be held that the fasts found do not warrant the inference that these occupancy holdings are of the nature of service tenures, or that the settlement of the original holding was a grant of land burdened with services. The zamindar has dispensed with the services of the jeth-raiyat and having done so, he is entitled to recover the rent of the subdivided holding at the rate which is shown as payable in the Record of Eights; and the tenants are no longer entitled to claim remission which they enjoyed on condition of rendering service as jeth-raiyat to the landlord.

The result is that the appeals must be allowed and the decisions of the Courts below are set aside. The plaintiff''s suit is decreed with costs throughout.