Pria Nath Das vs Ram Taran Chatterji and others

Robertson, J. 1. This appeal arises out of a suit for rent of a property known as chuck Khatali. The proceedings have an appearance of complexity which does not belong to the facts. 2. In 1867 Raja Baroda Kant Roy, from whom the appellant''s title is derived, executed a pottah, creating, in favour of the respondent Chatterji, an estate of permanent ganti tenure in mouzah Pankhali, which included along with other chucks the chuck Khatali now in dispute. 3. A bonus of Rs. 7500 was paid for this grant; and the annual rent to be paid for the whole of the lands was Es. 2300. It was known at the time of the pottah that the Government had right to resume, and was likely to resume, some part of the lands, and the following clause is part of the pottah:

If there be any lawsuit with Government or with any person regarding (torn) the proprietary right of any other part of the land, and if any (torn) steps are necessary to be taken, then such steps shall be taken by me. God forbid if I lose the said suit and if the land of that suit go to the possession of another person (torn), then the rent of the said land at the rate prevailing in the mehal for the jami-jumma thereof shall be deducted from the aforesaid jumma of Rs. 2300. Proper (torn) should be taken by me whenever any dispute shall arise regarding proprietary right. Except the above, on no other account abatement or enhancement shall be made regarding the aforesaid mowrussi mokurruri jumma of Rs. 2300, and neither I nor my heirs shall be competent to enhance the rent of (- hundred torn indistinct) and neither you nor your heirs shall be competent (torn) to claim abatement of the aforesaid fixed jumma at any time. 4. In 1882 the Government did in fact resume, inter alia, the chuck Khatali. The Government did not, however, take khas possession of Khatali, but granted it in temporary settlement to the heirs of Raja Baroda Kant Roy, he being now dead. The period of settlement was twenty years from 1884, 1904 being "the year fixed for the expiry of settlements in the Presidency Division "; and the rent fixed for chuck Khatali was Rs. 850. 5. The theory of the plaint, which was filed on April 13, 1897, is that the effect of these settlement proceedings was that the respondent Chatterji became liable to the owner of Khatali for the rent fixed in the settlement. Accordingly, the plaint ignores entirely the pottah of 1867, and rests the liability of Chatterji on the settlement alone; and the present appellant maintains his right to sue alone (he being purchaser of Khatali only), without the action being sued by the owners of the other lands which formed parts of the ganti tenure of 1867, and for which the lump annual sum of Rs. 2300 was the rent. 6. (It is true that originally there was a plurality of plaintiffs, the two widows, who are now formal respondents and into whose position it is unnecessary to enter, having been plaintiffs, but Kali Prosunno Ghose, who is now owner of part of the land granted in 1867, was never a plaintiff.) 7. To the plaint thus laid the respondent Chatterji opposed, as his substantial defence, his ganti right of 1867, as constituting his title to the chuck Khatali; and, with reference to the demand for Rs. 850, he said, in his written statement: The present defendant does not hold any jami-jumma at a rent Rs. 850 2a. 4p. appertaining to chuck Khatali subordinate to the plaintiffs, and he (defendant) did not bind himself by any engagement or pay rent regarding such jami-jumma either to the plaintiffs or to their predecessors, and he (defendant) is not bound to pay rent as above to the plaintiffs. 8. The Subordinate Judge of Khulna, before whom the action came, dismissed the suit with costs on September 16, 1897. On appeal, the Court of the District Judge of Jessore varied the decree of the Subordinate Judge; and on further appeal to the High Court, that Court reversed the lower Appellate Court and restored the decree of the first Court. 9. In their Lordships'' judgment the defence of the respondent Chatterji was well founded. The settlement proceedings of 1884 cannot be held to have abrogated the rights of that respondent under the pottah, so long as the Raja Baroda Kant Roy and his heirs were themselves in a position to let him have the lands. In fact, the resumption by Government did not disturb the possession either of the Raja''s heirs or of Chatterji. The mere fact of resumption cannot be held to have brought to an end the rights of the respondent Chatterji under the pottah, for the pottah itself recognises the precarious nature of the grantor''s title, and provides against the loss of possession should that be the result. 10. The appellant founded mainly on the 10th section of the Bengal Act VIII. of 1879. The claim of the respondent Chatterji in no way conflicts with the operation of this section, or with the rights of the Government under it. The section is plainly intended to fix for the future the liability of such undertenants as may enter into possession. 11. If it had seemed good to the Government to take the land into their own khas possession, or to settle it on strangers to the contract with the respondent Chatterji, then the recorded rent would have been the rate of payment by that respondent. But the lands having been settled on the heirs of the Raja who granted the pottah, the Act does not interfere with the contractual rights of the subordinate holder. Now, the period of the settlement being still current, the ganti right still subsists, and the respondent is only liable for the rent payable under the pottah. 12. The appellant endeavoured to make out that the respondent Chatterji had, by his letter of April 11, 1886, made himself liable for the rent of Rs. 850; but their Lordships agree with the Courts below in considering that document to be wholly insufficient to lead to this result. 13. The High Court have rested their judgment on the somewhat narrow ground that, Kali Prosunno Ghose not being a party to the suit, the appellant could not obtain the decree sought. It appears to their Lordships that this really implies the broader ground upon which they proceed. If the theory of the suit were right, and the settlement of 1884 created liability against the respondent Chatterji for Rs. 850 of rent to the owner of the chuck Khatali, then the appellant would not require the concurrence of the owner of another and different chuck. 14. It is because the liability of the respondent Chatterji is not under the settlement, but for a lump sum under the contract of 1867, that all in right of the lands, for which the lump sum is the rent, are necessary parties in any action for rent for chuck Khatali. 15. Their Lordships will humbly advise His Majesty that the appeal ought to be dismissed. The appellant must pay the costs of the respondent Chatterji.