BHARATESWARI BARMAN AND ANR. Vs. MANDIRABALA BHAKTANI AND ANR.
LAWS(GAU)-1951-8-11
HIGH COURT OF GAUHATI
Decided on August 23,1951

Bharateswari Barman And Anr. Appellant
VERSUS
Mandirabala Bhaktani And Anr. Respondents

JUDGEMENT

Ram Labhaya, J. - (1.) THIS is an appeal from the judgment and decree of the Additional Subordinate Judge dated 31 -5 -1950 by which the order of the Munsif of Dhubri granting plaintiff a decree for 90 maunds of paddy or in default Rs. 675 the market price thereof was affirmed.
(2.) PLAINTIFF had sued to recover 90 maunds of paddy or in the alternative its price. The defendants were tenants since 1937. According to the terms of the original kabuliyat the rent was payable in kind. It was fixed at 361/4 maunds per annum. The defendants fell into arrears and a suit for recovery of rent was instituted against them. This was disposed of on the basis of a compromise between the parties. One condition of the compromise was that plaintiff will accept for the next three years (1352 B.S. to 1854 B. S.) produce rent at a reduced rate of 30 maunds of paddy per annum. The concession was limited to three years. From 1355 B. S. onwards, the old rate of rent was to be received. The claim to 90 maunds of paddy is for three years, viz., 1352 B.S. to 1354 B.S. and it is based on the terms of the compromise referred to above. The terms of the compromise are not in dispute. The only question raised by the learned counsel for the appellants is that the price of 30 maunds of paddy at the market rate comes to Rs. 225. Plaintiff is a raiyat paying Rs. 27 as cash rent to her landlord. She is not entitled to more than double the rent she herself is paying. The contention rests on the language of Section 41, Goalpara Tenancy Act, as amended in 1943. This section (Section 41) provides that when an under -raiyat is admitted to the occupation of land, he shall, subject to the provisions of this Act, become liable to pay such rent as may be agreed upon between himself and his landlord at the time of his admission. The rent must not be less than the rent or rate of rent payable by the raiyat to his landlord nor must it exceed that sum by more than a hundred per cent. The maximum and the minimum limits for the rent which may be agreed upon between a riyat and an under -raiyat are contained in the proviso to. Section 41. The maximum limit was fixed by the amendment made in 1943. It is within these limits that any rent may be agreed upon between the landlord and the tenant at the time the tenant is admitted to the occupation of the land. The word 'rent' used in the section would cover both cash and produce rent as there is nothing in the language of the section which would justify giving a more restricted meaning to the word 'rent' than it should ordinarily bear. Its ordinary meaning in the Act, unless the context indicates to the contrary, includes both cash and produce rent. The definition of the word 'rent' is given in Section 4, Clause (17) of the Act. According to this definition 'rent' means whatever is lawfully payable in money or kind by a tenant on account of the use and occupation of the land held by the tenant. It is obvious that the word 'rent' in Section 41 of the Act would include whatever is payable by an under -raiyat to his raiyat either in money or in kind. This position is conceded by the learned counsel for the respondents. If money or cash rent alone had been intended, it should have been expressly stated. This, however, could not have been contemplated as the result would have been to preclude completely an under -raiyat from getting land on produce rent. So far there is no dispute. The difficulty in this case arises from the fact that plaintiff, the raiyat, is paying cash rent (RS. 27) annually to his landlord. The under -raiyat is liable to pay 30 maunds of paddy per annum for the 3 years in suit. The price of 30 maunds of paddy which is claimed if the specified quantity of paddy is not given is Rs. 225 per year. The learned counsel for the defendants contends that the maximum rent that the plaintiff may claim is Rs.54 per annum, viz., double the amount she is herself paying to her landlord under proviso added to Section 41 in the year 1943. This contention would be correct if defendant under -raiyat had been liable under his agreement to pay cash rent. Could a comparison be instituted where the plaintiff is paying fixed cash rent and her under -raiyats are liable to pay produce rent? The learned counsel for the respondents contends that no comparison is possible in such circumstances and the case does not come within the mischief of Section 41. I am inclined to accept this contention. The cash rent which the plaintiff pays is fixed and invariable. The produce rent may also be regarded as fixed and invariable if the rent is paid as stipulated. But the two would not admit of any comparison unless produce rent is computed into money. The money value of the produce rent, however, is changing and it could be claimed not as rent but only as compensation for failure to pay stipulated rent. If the produce rent is allowed to fall into arrears and the market price of the produce due is claimed as compensation for the failure to deliver paddy due under the agreement, this market price may vary with each year of default as the prices of foodgrains fluctuate. No comparison between the cash rent which a raiyat pays and the market price of the paddy rent that he may claim could have been intended. The market price in such a case may not be appropriately regarded as rent. Besides such a conversion of produce into money for purpose of comparison would give the under -raiyat the option to pay rent as he pleases. He would give paddy if it fetches a price lower than Rs.54, the maximum that the plaintiff may claim. If the price of the fixed quantity of paddy can being him more than Rs.54, he would commit default and force the landlord to accept Rs.54. The effect would be that the agreement to pay a fixed produce rent would be rendered nugatory. This effect shall not follow if a raiyat is permitted by law to admit under -raiyat to the occupation of land on produce rent. In an unreported case decided by the Calcutta High Court in Komaraddi v. Monmohini Dasya, Civil Appeal no. 29 of 1916 (vide, 21 C. W. N. 100) it was held that Section 48, Bengal Tenancy Act, taken as a whole indicates plainly that the landlord and the under -raiyat must both hold their respective tenancies at a cash rent as otherwise no comparison can possibly be instituted as contemplated by the section.
(3.) MR . Ghose has not argued that the language of Section 48 is in any way materially different from the language employed in Section 41, Goalpara Tenancy Act; nor has he given any other reason why a different interpretation be placed on Section 41, Goalpara Tenancy Act. I am in full agreement with the view expressed in the unreported Calcutta case and hold that Section 41 has no application to this case.;


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