- (1.)This is an appeal against an order of the Addl. Commissioner, Jaipur dated 24.7.59 whereby he has modified the decree of arrears of rent granted in favour of the appellant by the learned Assistant Collector, Daussa, on 28.2.59. We have heard the learned counsel for the parties and have examined the record as well. The suit was based on the ground that the disputed land had been let out to the respondent in Smt. 2013 for one year for both the crops for a rent of Rs. 30/ - cash and 37 Md. 20 Srs. Kartekha equivalent to 28 -1/4 Mds. pakka grain to be paid half for kharif and half for Rabi, but which has not been paid and therefore the appellant was entitled to get Rs. 37/ - plus 3 10/12/ -as cost of the grain @ 11 - per Md. equal to Rs. 340/12/ - in all. It was denied by the respondent who alleged that he had been cultivating the land from a very very long time and not executed any fresh deed in favour of the appellant and that no arrears of rent were due from him and that the appellant was not entitled to get more than 1/6th of the produce of the disputed land. It was further, alleged that the suit had been brought to harras and bring pressure for evicting the land. After framing necessary issues and recording the evidence of the parties the learned Assistant Collector, Daussa, granted a decree for Rs. 303/8/ - as against the amount claimed on the ground that Khasra Nos. 3571, 3572, 3584 out of the disputed land being assessed to rent of Rs. 8/2/ -the appellant being a tenant suffering from infirmity described in sec. 46 of the Rajasthan Tenancy Act (hereinafter referred to as the Act) could get only 3 -1/2 times thereof equal to Rs. 28/8 - vide sec. 100 read with, sec. 99 of the Act. As for other two Khasra Nos. 2807 and 3570 (it is not clear for what reasons) he allowed 1/4 of the gross -produce of the Act, equal to Rs.274/ -. In appeal the learned Additional Commissioner held that all the khasra Nos. of the disputed land were settled and therefore reduced the rent allowed for khasra Nos. 2807, 3570 also to the same rate as on other Khasra Nos. The decree was thus modified to amount to a sum of Rs. 144/6/ - only. In this second appeal before us it has been argued by Shri Tiwari on behalf of the appellant that when a rent had been agreed upon between the parties it was only that rent which could be allowed to the appellant and not any other, and that the provision dealing with the maximum limits of rent given in Chapter IX of the Act would not be applicable to this case. He has referred us to a case (1) Divishai Vs. Bhomia case No. 29/ 1959 Jaipur decided on 2.7.60 decided by D. B. of this Board to which one of us was a party in this connection and urged that it having been decided therein that sec. 104 was not applicable to cases in which rent had been agreed to be paid in kind, the judgment and the decree of the learned Additional Commissioner has been based on an erroneous, view of law. One of us being a party to the judgment cited we can very safely say that the judgment considered only cases of produce rent and not cases where rent could be settled even in kind without reference to the share of the produce. There has been another judgment of a D. B. of the Board to which also one of us was a party, Revision No. 25 Jaipur 1950 Mishrilal, Gopoolal Vs. Kajod decided on 19.7.60. It was discussed that there could be two kinds of cases for arrears of rent payable in kind and not in cash, quite different from each other. It goes to state Except when rent is fixed to be paid in cash, the rent would be payable in kind both when it is fixed to be so payable in kind and when it is to be estimated or appraised on a crop or divided from a produce. But in one case it would be fixed i.e., invariable without depending on the amount of produce raised; but in other case it would be variable and fluctuating depending upon the quantity of produce obtained. It would be known as rent in kind in one case and the produce -rent in the other, vide Item 17 -18 of the Third Schedule of the Act. Also the forum for the trial of the suits for two kinds of arrears have been kept separate, Tehsildar in one case and the Assistant Collector in the other. The rent in kind would, therefore, cover both rent as a share of the produce as well as rent to be paid in a fixed quantity of grain irrespective of the produce raised from the land let out. With thus interpretation, sec. 104 of the Act would govern all cases of rents in kind and we find it difficult to agree with Shri Tiwari when he says that where rent is agreed to be paid in kind, it is a sort of a cash rent and not kind rent and that only when a share of produce is stipulated to be paid, it would be a rent in kind. Now, Chapter IX of the Act lays down the initial rent to be paid by a tenant to the effect that "subject to the other provisions of this Act", a tenant on being admitted to the occupation of land shall pay such rent as may be agreed upon between him and the land holder. So obviously this is "subject to the other provisions of the Act". The succeeding provisions in sec. 96,97,98,99,100,101, 161 -A, 132, 103, 104, and 105 prescribe the maximum limits of rent payable by a tenant. Sec.96 lays down that notwithstanding any law, rule, custom, usage or practice to the contrary, the maximum amount recoverable as cash rent from the tenant by the State Government shall be the rent sanctioned during the last settlement or if not so sanctioned what be sanctioned during the last settlement for similar land in the neighbourhood. Sec. 97 authorises the State Government to fix maximum rent chargeable by a tenant from a subtenant notwithstanding any custom, usage or practice to the contrary, or anything contained in any law, enactment, rules, decree or order for the time being in force Sec.98 authorises the State Government to prescribe rent payable by the tenant in cash where the land revenue has been settled -subject to the condition that it shall not be more than 3 times maximum rent payable by a sub -tenant in arrears where rent has also been settled subject to the condition that it shall not exceed twice the amount payable by such tenant. Sec.100 prescribes the higher maximum in cases tenants are suffering from any of the infirmity prescribed by sec.46 of the Act. Sec.101 further limits the maximum amount so prescribed to being paid by the sub -tenant at the commencement of this Act. Sec. 102 even authorises the Tehsildar on an application to recover as an arrears of land revenue from a land holder any rent realised in excess of the maximum so prescribed. Sec. 104 very clearly lays down that notwithstanding any contract, custom, usage or practice to the contrary, where rent be payable in kind the maximum recoverable from a tenant by the landholder shall not exceed one -sixth of the gross -produce thereof for each harvest. It is only when the land holder himself contributes to the production of crops that a higher rate of kind rent not exceeding 1/4th or the gross produce has been allowed to be charged and that also when the contract has been made through a registered deed. Thus the provision fixing the maximum limits or rent are there notwithstanding any other provision in the Act as well as in any other law, usage custom or practice to the contrary. Besides, sec. 4 of the Act now replaced by sub see. (4) of sec. 3 of the Act also renders all agreements relating to the agricultural tenancies existing and operative at such commencement which are repugnant or inconsistent with the provisions of this Act subject to such savings as provided elsewhere in the Act to be void and inoperative to the extent of such repugnancy or inconsistency. Obviously even if there is an agreement between the parties, which, of course,has not been considered at all by the learned Additional Commissioner, after the enforcement of the Act no land holder including the tenant can charge a rent exceeding the limit prescribed by the above discussed provision or the Act, the initial rent chargeable under sec. 94 being also subject to the other provisions as discussed above, and as soon as an area is brought under settlement and rent has been settled in cash, the maximum rent recoverable by a tenant from a sub -tenant shall be not more than twice the amount of such rent in ordinary cases and not more than 3 times of such rent in cases of tenants suffering from any of the infirmities laid down in sec. 46 of the Act. it has nowhere been denied by Shri Tewari that all disputed land is settled land and the rent thereof has been fixed by the Settlement. The learned Additional Commissioner has not therefore, committed any error of law in modifying the decree of the learned trial court as he has done. We therefore, find no force in this appeal, which is hereby rejected, and confirm the decision of the learned lower appellate court.
;