Nathu Singh and another vs Rohin Singh and others

Reuben, J.—These appeals, both by the defts. are directed against a decision of Shearer, J., reversing the concurrent decisions of the Courts below in the relevant suits. They arise out of suits for rent filed by the respondents, who are common to both the appeals, against the defts. The landlord sought to recover arrears of rent for the years 1350 to 1353 fasli at the rent specified in the Kabuliats (Exs. 2 & 2/a) executed by the defts. in his favour in the years 1927 & 1928. The tenancies are agricultural tenancies. The defence taken was that the rent of these tenancies had been reduced under the provisions of S. 112-A, Bihar Tenancy Act. This defence was accepted by the lower Courts but the decision was reversed by Shearer, J., on the finding that the tenancies were the holdings of raiyats at fixed rates & therefore the orders passed under S. 112-A were without jurisdiction.

Five points were urged before us: one, that the point that the tenancies were ''sharahmoayyan raiyati'' tenancies was raised for the first time in the Court of the single Judge; secondly, that the right of occupancy raiyati had already been acquired by the defts. before the kabuliats in question were executed & they, therefore, continued to be occupancy raiyats after the exectuion of the kabuliats; thirdly, that a previous decision in a rent suit brought by the predecessor-in-interest of the respondents operates as ''res judicata'' in these cases; fourthly, that the predecessor-in-interest of respondents granted receipts to the defts. on realisation of rent at the reduced rate & thus created a new contract between the parties; & fifthly, that the learned single Judge erred by reversing a finding of fact.

Point No. 1: There is no substance in this objection. The tenancies are described in the plaints ''Istimrari Mokarrari'' without any specific interest of a tenure-holder. It appears to have been argued on behalf of the plffs. before the Munsif that the tenancies were tenures. This is usually the case with a tenancy which is described as ''Istimrari Mokarrari.'' The contention raised before the Munsif appears to have been in the nature of the interpretation of the two kabuliats & no objection on this ground seems to have been raised, when, in the first appellate Court, it was argued on behalf of the plffs. that the tenancies were really ''sharahmoayyan raiyati tenancies. It has been contended before us that the matter is not entirely one of interpretation, that in order to determine whether a tenancy is that of a raiyat or of a tenure-holder questions of fact have to be gone into. So far, however, as the facts relating to these tenancies are concerned there is no dispute whatever, either as regards the area or the rent or the purpose for which the tenancies were created.

Point No. 2: This is the point on which main reliance has been placed. Contention is that before the execution of these kabuliats the defts. were already in possession as occupancy raiyats & that by the execution of these kabuliats & the acceptance thereby of fixed rents there was no merger of the original occupancy raiyati interest with the new interest created. In support of this contention reference was made to Midnapore Zemindary Co. Ltd. v. Sadhumoni Dasi'', 54 Cal 681, ''Sarbeshwar Patra v. Bijay Chand Mahtab'', 49 Cal 280 and ''Lakhi Charan Saha v. Hamid Ali'', 27 C L J 284. In 49 Cal 280, it was held that a ''Sharahmoayyan raiyat'', can acquire occupancy rights & thus claim protection under the provisions of Section 160, B. T. Act. In the other two cases the question was as to the existence of "protected interest", in the first case under S. 160, B. T. Act & in 27 Cal L Jour 284, under the provisions of the Revenue Sales Tax Act of 1859. The provisions of these sections relate to tenants who have occupancy rights, & in the decisions relied on it was not held that the right of an occupancy raiyat persisted. On the contrary, in 27 Cal L Jour, 284, their Lordships appear to draw a distinction between a raiyat holding at fixed rates & an occupancy raiyat & expressly considered the question whether the latter can retain the privileges of an occupancy raiyat after he becomes a raiyat holding at fixed rates. The point in question was protection under S. 160, Bengal Tenancy Act. This privilege is accorded to occupancy rights & this is the point that was found in the decision cited. There is nothing in these decisions to support the contention that there was no "merger." The use of the term "merger" seems to be incorrect. The effect of the execution of the kabuliats was to bring a new tenancy into being, viz., the tenancy of a raiyat at fixed rates; there was no question of the previous tenancy merging with the tenancy so created. It is open to an occupancy raiyat to transfer his interest. It is equally open to him to surrender it. There seems to be no reason why by entering into a new contract he cannot extinguish the interest altogether. As regards the right of occupancy, that would be governed by the provisions of Ss. 19 & 20. Bihar Tenancy Act. This point must, therefore, be decided against the appellants.

Point No. 3: This point was rightly given up before the learned single Judge. The previous decisions relied on relates only to one tenancy. The only document relating to which consists of the copy of the decree. The pleadings & judgment are not incorrect.

Point No. 4: This point has been sufficiently dealt with in the judgment of the learned single Judge. Stress has been laid on the receipts because it is said that they contain express references to the order under S. 112-A. The references, in my opinion, make no difference. All that these references amount to is that the predecessor-in-interest of the plaintiffs being under a mistaken impression that he was bound by the order under S. 112-A realised the rent at reduced rate. This cannot amount to a new contract between the parties & cannot prevent the landlord from realising in subsequent years the rent to which he is legally entitled.

Point No. 5: As I have said already no question of fact was really in dispute. The question is one entirely of interpretation. This point therefore fails.

On these grounds I would dismiss this appeal with costs.

Ramaswami, J.

I agree.