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Judgment
Mohammad Noor, J.—This appeal arises out of a suit instituted by the respondent landlord for the realization of rent for the years 1330 to 1333 Fasli with a prayer for enhancement of rent u/s 30(b), Ben. Ten. Act. In effect there was also a prayer for assessing rent on an excess area found in possession of the defendant over the area for which the rent was fixed in 1908 under a kabuliyat of that year.
Prior to the year 1908, the appellant''s holdings were of 24 bighas 10 kathas of bhowli lands and 2 bighas 14 kathas 10 dhurs of nakdi land, with a rental of Rs. 13-3-0, the total area in possession of the defendant being 27 bighas 4 kathas 10 dhurs. It appears that the defendant along with other tenants of the village made an attempt to have the rents of bhowli lands commuted into nakdi.
This was refused by the Revenue Authorities. Later on some settlement was arrived at between the parties and the rent of the bhowli lands of the defendant was commuted by a mutual agreement at a uniform rate of Rs. 7 per bigha, the rent coming to Rs. 171-8-0. Adding to it the nakdi rent already mentioned the total rent come to Rs. 184-11-0. A kabuliyat embodying these terms was executed by the defendants. There are two stipulations in the kabuliyat which require special mention. The first is to the effect that if any excess area be found in possession of the defendant rent at the stipulated rate would be paid by him, and the second is that the rent, namely Rs. 7 per bigha was fixed on the consideration of the fact that the defendant was a jeth raiyat, the usual rent being Rs. 7-14-0 per bigha.
The plaintiff claimed rent at the rate of Rs. 7-14-0 per bigha for the bhowli area on the allegation that he was entitled to that rate on account of the defendant having ceased to be a jeth raiyat and also claimed rent for the excess area of 8 kathas 10 dhurs found by the survey of 1910. Then, as I have said, there was a prayer for enhancement of rent. The trial Court passed a modified decree. It disallowed rent for the excess area and held that the plaintiff was entitled to rent only at Rs. 7 per bigha.
It allowed enhancement at 12� annas per rupee for bhit and 1� annas for dhanhar. The lower appellate Court has given a full decree to the plaintiff and has allowed enhancement at 4 annas 6 pies for bhit and 2 annas 9 pies for dhanhar. This decree has been attacked before us on various grounds and I shall take them up one by one.
The first contention of the learned advocate has been that under the kabuliyat the holding became a holding at fixed rate and no enhancement was permissible under the law. In support of his contention he relied upon two decisions of the Calcutta High Court, namely Chandy Charan Law v. Azizernessa, AIR 1922 Cal. 18 and Nabendra Kishore Roy Vs. Choudhury Mian and Others, . He contended that when there was a stipulation in a kabuliyat that the rent would increase if an excess area be found in possession of the tenant, that stipulation would make the rent a fixed rent not liable to enhancement.
I do not find any support for this proposition in either of the two decisions relied upon by the learned advocate. In the first case the tenancy involved was not that of an occupancy raiyat, but that of a tenure-holder and on the facts of that case the Court found that the tenant was a permanent tenure-holder. In the second case, as it appears from the judgment, the tenancy seems to have been created by the kabuliyat itself and the rent being fixed as stipulated in that kabuliyat the Court held that the rent was permanently fixed and was not liable to be enhanced. It is obvious that there is a good deal of difference between a raiyati right created by contract and a raiyati right created by a statute. An occupancy raiyat is a creation of law, he has certain rights and certain liabilities and his rights and liabilities are governed by law and are practically unaffected by contract.
But if the landlord inducts on his land a raiyat not having a previous status in the village the relationship between this raiyat and the landlord will be governed by the contract entered into between them. In the second case above referred to, on the construction of the kabuliyat, the Court held that the rent was permanently fixed. By the kabuliyat of 1908 the defendant did not change his status of an occupancy raiyat into one of a raiyat at fixed rent. The kabuliyat did nothing more than to commute the bhowli rent into rent in cash and I fail to understand what difference it made from the commutation by the order of the Revenue Authorities.
The second contention of the learned advocate has been that the lower appellate Court was wrong in allowing rent at Rs. 7-14-0 per bigha on account of the fact that the defendant-appellant ceased to be a jeth raiyat. He contended that the rent was fixed irrespective of the service which was being rendered by the defendant as a jeth raiyat. He argues that the position of the defendant as jeth raiyat might have been a consideration for the landlord to fix a lower rent, but it was not provided that the rent was liable to be increased by 14 annas per bigha if the defendant ceased to be a jeth raiyat. Here again I see no force in this contention. It is obvious from the kabuliyat itself that the rent for land of that class was Rs. 7-14-0 and 14 annas per bigha was taken off as consideration for the defendant holding the office of jeth raiyat. It is found as a fact that to be a jeth raiyat, the consideration for which the lesser rent was being realized, disappeared, and I see no reason why the defendant should not be made liable for the full rent of Rs. 7-14-0.
The third contention has been that no excess rent ought to have been fixed for the excess area found in the possession of the defendant. This excess rent was not allowed by the trial Court because it was unable to find whether the excess was in the original nakdi holding or in the bhowli holding which was converted into a nakdi holding regarding which there was a stipulation for excess rent on the excess area. The learned Subordinate Judge has however found as a fact that the excess was in the bhowli land and that the excess was more than 8 kathas 10 dhurs though he has allowed rent for 8 kathas 10 dhurs only. Under the clear stipulation of the kabuliyat the defendant is liable to pay excess rent of this area.
The learned advocate however contended that the Court ought to have ignored the excess area of 8 katha 10 dhurs in the total area of 24 bighas as the excess was trifling. I do not think that the excess was so trifling as to be ignored. Then the learned advocate contended that the rent of the excess area has been fixed at the increased rate, that is, the rate found after the enhancement. I do not think that there can be any just grievance on that ground. The kabuliyat specifically provides that if an excess area be found, the same rent would be paid in respect of it as for the other lands.
If after the enhancement a certain rent has been fixed for the original area I see no reason why under the terms of the kabuliyat the same rent should not be fixed for the excess area. The next contention has been that the kabuliyat provided that the landlord was bound to have proper arrangements for irrigation in the village and there being a finding that the earthworks had to some extent been neglected, the landlord was not entitled to any enhancement. There is however a finding that the neglect has not in any way deteriorated the land. The learned advocate contended that irrespective of the effect of the neglect the landlord was not entitled to claim any increase in the rent. I am unable to accept this contention. There are neglects and neglects.
Neglect by itself without considering its effect cannot be a ground for refusing enhancement. A failure to put a few baskets of earth to fill up a hole which is causing no harm cannot be a neglect contemplated in the kabuliyat. The question that arises is whether the neglect complained of has in any way affected the cultivating tenants of the village. The finding is that it has not. Therefore I do not think that the enhancement claimed can be refused on that ground.
Last of all it was contended that the economic depression which has come in since the decrees of the lower Courts were passed must be taken into consideration by us. The effect of economic depression on a particular enhancement of rent is a question of fact which must be determined under the circumstances of each case. There is no such material on the record.
As however we propose to reduce the rate of enhancement allowed by the learned Subordinate Judge, the rate now allowed is not likely to cause any hardship to the defendant. I now come to the question of the enhancement itself. It was found By the trial Court that the maximum enhancement allowable was 2 annas 8.4 pies per rupee for paddy land and 4 annas 5.8 pies for bhit land, but that Court allowed only 1� annas for the former and 2� annas for the latter. This was increased by the lower appellate Court to 2 annas 9 pies and 4 annas 6 pies respectively. The enhancement granted by the lower appellate Court is slightly in excess of the maximum allowed by law.
It appears that in the Bihar sub-division, from where this case comes, there has been some mistake in calculating the maximum enhancement for uplands, on account of the fact that the figures for that sub-division in the average price list of staple food-crops from 1898 published by the office of the Director of Land Records in the year 1925 were wrong. A correction slip is said to have been issued, but in the copy which is available in this Court the slip is missing. The correct figures were however given in a subsequent publication which was issued in the year 1932.
It is obvious that the Bihar Court must have acted in this case on the list published in the year 1925 because the subsequent list which was published in 1932 was not then available. This mistake was discovered in this Court in a certain case and a reference was made to the Director of Land Records and the fact that there was a mistake has been verified. It appears that for the decades which are relevant in this case, namely, 1907 to 1916 and 1917 to 1926 the maximum enhancement permissible under the law for bhit lands will be only 3 annas per rupee. The maximum permissible for dhanhar lands, as I have stated, is 2 annas 8.4 pies per rupee. Leaving out the fraction I think an enhancement of 2 annas 8 pies per rupee ought to be allowed for all the lands both dhan and bhit. The calculation will be on the rent after deducting the cesses as stated in the decree of the lower appellate Court.
This will meet the objection of the appellant that enhancement has been allowed on the cess also which in fact was not done. The defendant will be liable to pay cess on the rent now fixed.
A fresh decree will be prepared in this Court. With this modification the appeal is dismissed. Half the costs of this Court will be allowed to the respondent.
Wort, J.
I agree.