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Judgment
This is an appeal by defendant 1 against the decision of a learned Judge of this Court who upheld the concurrent decisions of the Courts below decreeing the suit of the plaintiff in the following circumstances. The plaintiff took a permanent lease from the predecessor of defendant 1 in the year 1914 by a registered document. The parties were under the impression that the area of the land which was being leased was about 950 acres of land and as a large portion of that land was jungle land it was provided in the lease that if the land leased should be found, on remeasurement, to be less than 950 acres it should be made good by the lessor, but in ease more lands were found within the boundaries specified in the document the lessee would be bound to pay salami and rent at the rate of Rs. 2 per acre mentioned in the lease besides cess.
In the year 1924 the estate of the appellant was taken over by the Court of Wards. In February 1925, the settlement proceedings began under the authority of the Government who directed the preparation of a settlement roll, as a settlement of land revenue was about to be made. In accordance with the provisions of the Orissa Tenancy Act settlement roll was prepared for the lands in the possession of the plaintiff under the lease of 1914. The entry in the rent roll shows that the plaintiff was found in possession of 1279 acres of land within the boundaries as specified in the lease of 1914 and these lands were stated to be liable to pay rent at the rate of Rs. 1-0-4 per annum per acre. The plaintiff was also found in possession of 260 acres of land outside the boundaries of the lands leased and liable to pay rent at the same rate.
In the year 1927, the Court of Wards started proceedings u/s 61, Orissa Tenancy Act by which they, on behalf of defendant l, claimed to eject the plaintiff on the ground that he had no right to reclaim the waste lands, 589 acres. The parties appear to have compromised their dispute by a petition dated 17th October 1927, by which among other terms it was agreed that out of the disputed 589 acres of land, 329 acres of land were within the boundary mentioned in the patta of 1914 and, therefore, the plain, tiff was liable to pay rent at Rs. 2 per acre besides salami. With regard to the remaining 260 acres of land the plaintiff agreed to pay rent at the rate of Rs. 1-0-4 per acre.
In February 1980, the manager of the Court of Wards on behalf of defendant 1 filed a certificate before the certificate officer to realize rent from the plaintiff at the rate agreed upon in this compromise petition, Ex. H. The plaintiff denied the validity of the compromise on various grounds and contested the claim put forward by the certificate. While these proceedings were pending, in July 1930, the manager of the Court of Wards on behalf of defendant 1 filed a cess return under the cess revaluation proceedings as required by the Cess Act of 1880. In that return all the excess reclaimed lands of the plaintiff including the lands found to be in excess of 950 acres were shown as liable to pay rent at Rs. 1-0-4 per acre per annum. The certificate officer struck off the proceedings in 1931 but on appeal his order was set aside by the Collector who remanded the case for re-hearing. Instead of proceeding with the case the certificate officer issued a new certificate in the year 1932 being certificate case No. 805 of 1981-82.
The present suit was instituted under the provisions of Section 48, Bihar and Orissa Public Demands Recovery Act, 1914, for a modification of this certificate filed in 1932 for a declaration that the plaintiff was liable to pay rent only at the settlement rate mentioned in the settlement rent roll and that the compromise of 17th October 1927 was illegal, ultra vires and not binding upon him; other consequential reliefs were also asked for.
The learned Munsif held that the plaintiff was a permanent tenure-holder in respect of the lands under the last settlement and, therefore, the provisions of Section 61, Orissa Tenancy Act, have no application, that the compromise of 1927 was not fraudulent but it was not given effect to as the Court of Wards went on realizing rent at the rate of Rs. 1-0-4 per annum as evidenced by the rent receipt, Ex. 2, dated 8th November 1928 which was granted by the tahsildar of the Court of Wards to the plaintiff in respect of the excess reclaimed lands. He accordingly held that defendant 1 cannot claim rent for the disputed land at more than the settlement rate of Rs. 1-0-4 per acre.
Against this decision of the Munsif of Balasore an appeal was preferred which was disposed of by the Additional Subordinate Judge on 20th April 1934. He held that the entry in the record of rights that the plaintiff was a tenure-holder was wrong because the kabuliat of 1914 shows that the lease was pure and simple raiyati lease. But he agreed with the learned Munsif, though on different grounds, that Section 61 had no application so far as the Court of Wards wanted ejectment of the excess lands of 329 acres now in dispute, because these lands were covered by the lease of the plaintiff.
He also agreed with the learned Munsif that the compromise operated as a lease for more than a year and was therefore inadmissible without registration. The learn, ed Subordinate Judge relied upon the provisions of Section 127, Orissa Tenancy Act, and field that as no suit had been instituted within the period provided by Section 126 there was an irrebutable presumption that the rent mentioned in the settlement rent roll was correctly settled. Against this decision there was an appeal which was heard by Agarwala J. who dismissed the second appeal by a judgment dated 1st December 1939, holding that defendant 1 was precluded by the provisions of Section 20, Cess Act, from claiming rent at a rate higher than that mentioned in the cess return overruling the contention advanced on behalf of the appellant that in any case defendant 1 was entitled to recover rent for the years preceding the date of the cess return at the rate agreed upon by the parties in the compromise of October 1927. Hence this Letters Patent appeal.
The first question to be considered is the extent to which the provisions of Section 20, Cess Act, operate against the claim for rent made by defendant 1. By Section 12 the Board of Revenue may order that a valuation or revaluation shall be made of a district or part of a district and also that the revaluation shall take effect from the beginning of such year as the Board may direct. In order to arrive at a valuation or revaluation as the case may be, the Collector is empowered to issue a proclamation calling upon the holders of estates or tenures as provided by Section 14 to lodge at the office of the Collector a cess return in the form specified in Schedule A. Where the land is in actual occupation or cultivation of the person submitting the return Part 1 provides that the annual value thereof should be given, and where the land is held by cultivating raiyats paying direct to the persons submitting the return, Part. 2 provides that the annual rental of the land should be shown in column 5. Annual value is defined in Section 4 to mean the total rent which is payable during the year or if no rent is actually payable, would on a reasonable assessment be payable during the year by the persons in use and occupation of the land. The year is also defined by Section 4 to mean the "cess year" as determined by the board u/s 11. Section 11 empowers the board to fix the date from which the cess leviable under the Cess Act shall take effect and to fix the date from which the cess year shall begin to operate. Ample provisions are made to ensure that the returns are filed "containing correct particulars.
Section 18 gives the power to impose daily fine if no return is filed during such period as may be fixed. By Section 19 if no return is filed further provision is made by which the holder of a tenure or an estate is precluded from suing for or recovering rent for any land or tenure in respect of which no return has been lodged; the Collector may send a list to the civil Courts of such defaulting holders and the disability of being prevented from suing for or recovering rent ceases only if the return is lodged or when the valuation of the estate or tenure had been completed otherwise.
By Section 20 the holder of an estate or tenure is precluded from suing for or recovering rent for any land which has been omitted in the return unless it is proved that the holding or tenure omitted, for which the rent is now claimed, was created subsequently to the lodging of the return. It is also provided that the holder shall be precluded from suing for or recovering rent at a rate higher than that mentioned in such return unless it is proved that the rent of such land or tenure has been lawfully enhanced subsequently to the lodging of such return.
A consideration of these careful provisions leaves no doubt in our mind that the statute aims at the obtaining by the Board of Revenue of correct particulars of the income from the lands for the cess year and has nothing to do with the income which was being received for such lands before the valuation or revaluation as the case may be. Has the statute expressly taken away in any circumstance the right to recover rent or arrears of rent for the period before the return was filed? Cases can easily be conceived where the holder of an estate has agreed to let the land at a variable rate of rent decreasing each year or where there is a dispute between the holder and his raiyat as to the amount of rent actually payable. If in the former case the rent for the year preceding the year of the cess return is, say, Rs. 40 and rent for the year of return is Rs. 20 what rent has the holder to show in his return? Obviously the rent due for the year defined by the Cess Act, that is to say, Rs. 20. Can the holder in such a case be prevented from realising arrears of rent actually due to him for four years before the cess return at a rate higher than Rs. 20? Obviously not. To the similar effect is Rule 62, which will be found at p. 117 of the Manual (framed u/s 182, Cess Act); it provides that where there is a dispute pending between a zamindar and his tenure-holders or raiyats as to the amount of rent, the zamindar should, in preparing the return enter the rent actually last paid and under the latter part of Section 20, Clause (b) of the Act his claim to enhancement will not be barred thereby. Again take the case where the holding of a certain raiyat is subject to diluvion. During the year of the cess return the holding is diminished considerably by the action of the river and by the terms of the agreement between the landholder and the raiyat the landlord is only entitled to recover rent for the area then in occupation of the tenant. Can in such a case the landlord be prevented from suing for or recovering rent at a higher rate (than is mentioned in the return) for the previous years? Take again the case where the cess return was filed for the previous years and then by a revaluation order another cess return has been filed showing a lesser jama for the year of the cess return. Can the landlord be prevented from recovering the rent for the period covered by the old cess return at a rate higher than that mentioned in the new cess return? Clearly not. It seems to us that the penalty for not making a return or for not giving a correct return can only apply to the recovery of rent for the period after the return is filed. For these reasons in our opinion the contention of the appellant is correct that the bar imposed by Section 20 will not prevent him from realizing rent at a rate higher than that mentioned in the cess return for the period before the cess return was filed. The contention of the appellant is correct to this extent.
But there is another difficulty in the way of the appellant. As already stated the rate of rent for the lands in dispute was fixed at Rs. 1-0.4 per acre per annum in the settlement rent roll. By the provisions of Section 127, Orissa Tenancy Act, the rent settled and entered in the record of rights finally published u/s 116 shall be deemed to have been correctly settled. It is admitted that no suit had been brought as provided by Section 126, Sub-clause (2).
The result is that defendant 1 cannot claim rent for the lands in suit at a rate higher than what is stated in the record of rights which admittedly had been finally published. But it was argued by the learned Advocate-General for orissa, who appeared for the appellant, that the settlement authorities had no jurisdiction to determine the rent payable for the excess area because of the provisions of Section 61, Orissa Tenancy Act. He relied upon Sub-clause (3) which provides that
waste land which has been reclaimed under Sub-section (1), or Sub-section (2) shall be assessable to rent according to the terms of any agreement entered into by the parties before or after the reclamation,
and relied also upon the compromise already referred to of the year 1927 by which the parties agreed that the rent for the lands in suit shall be at the rate of Rs. 2 per acre.
In our opinion the argument is not sound. By Section 118, Orissa Tenancy Act, the revenue officer is enjoined to settle fair and equitable rents for tenants of every class and therefore he must record rents even for the reclaimed lands whether the landlord has moved the Collector to eject the tenant u/s 61 or not. The jurisdiction to assess and determine the rent is entirely a different thing from the error committed in fixing the amount of rent because the officer who has jurisdiction to decide the matter has jurisdiction to decide it rightly or wrongly. It cannot be argued that an officer has jurisdiction only if he decides correctly. If the revenue officer has jurisdiction to decide what the rent payable for the land in dispute is (as we hold he is so entitled) then he may take a wrong view of the facts, may misinterpret the kabuliat, ignore the compromise arrived at by the parties, as he is empowered by Section 119 and fix a rent which he considers to be the proper rent. If the officer makes a mistake by which the landlord or the raiyat is aggrieved provision is made by Section 126 to institute a suit within six months from the date of the certificate of the final publication of the record of rights in a civil Court where the error of the revenue officer may be corrected.
The learned Advocate-General further argued that assuming that Section 126 read with Section 127 prevents the reopening of the question of the finality of the rent there is no bar to the parties arriving at an agreement of their own varying the rent payable after the record of rights has been published. He therefore relies upon the compromise of 1927 and argues that the parties agreed to pay rental at the rate of Rs. 2 per annum after the publication of the record of rights. But the answer to this contention is that in the present case the parties went before the Collector u/s 61 professedly challenging the entry made under the Orissa Tenancy Act published u/s 116, although the statute required them to go to the civil Court. The Collector therefore had no jurisdiction to vary the rent as fixed in the settlement rent roll. Again the Collector has jurisdiction u/s 61 only if the land lord wants to eject the tenant from the waste land which he has reclaimed without the written consent of the landlord provided that the land is not included in the tenancy of the raiyat.
In the present case the plaintiff reclaimed the land with the written consent of the landlord which is embodied in the lease of 1914. It has been concurrently found by the trial Court and the lower appellate Court that the land in suit before reclamation was included in the tenancy of the raiyat, and indeed by the compromise of 1927 this position has been expressly accepted. It follows that the Collector had no jurisdiction to take proceedings u/s 61 or if he had jurisdiction to proceed u/s 61, as soon as the parties agreed that the raiyat had a right to reclaim the land with the written consent of the landlord and the land was included in the tenancy of the raiyat, his jurisdiction came to an end. The Collector, it may be noticed, did not proceed to exercise any jurisdiction at all because the parties came to some terms.
The question is whether the terms agreed upon by the parties by which they fixed the rent payable for the lands in suit according to the agreement of 1927 are valid in law to override the fixation of rent by the settlement officer. If the terms of the compromise are read, it will be observed that the parties did not come to any fresh agreement. All that they did was to settle the dispute as to whether the reclaimed land was within the tenancy of the raiyat or outside his tenancy as created by the lease of 1914. They decided that a certain area of the land then in dispute which includes the land now in dispute in this suit was within the boundaries specified in the patta or kabuliat of 1914. They did not pretend to fix the rent afresh by a fresh agreement.
We therefore construe the compromise to mean nothing more than this that the lands which were in possession of the raiyat were within the boundaries and therefore governed by the terms of the agreement of 1914. But the settlement authorities had superimposed their own decision and fixed the rental for the land in suit at Rs. 1-0-4 per acre per annum. That decision has become final as no suit had ever been instituted within the period provided by this statute.
For these reasons, we hold that the appellant must fail and the suit of the plaintiff has been rightly decreed. In the result the appeal fails and must be dismissed with costs.