RAGHO SINHA Vs. DASRATH KANJI

JUDGEMENT

(1.) This is a plaintiff's second appeal in a suit for recovery of rent in respect of a holding consisting of two plots 593 and 763 recorded in khata No. 161 in mauza Parmanandpur otherwise known as Gangeya, tauzi No. 14439. The plaintiff claimed bhaoli rent in respect of plot 593 and nakdi rent in respect of plot 763, besides half of the price of the mangoes being the produce of 16 mango trees standing thereon of the years 1349 and 1350. The tenant-defendant resisted the suit on various grounds which it is not material to set out in detail. The trial Court gave the plaintiff a decree for bhaoli rent in a modified form in respect of plot 593 and the plaintiff-landlord did not re-agitate the issue in the Court of appeal. The trial Court, however, gave the plaintiff a decree for the cash rent as recorded in the record of rights in respect of plot 763 and dismissed his claim of half the price of the mangoes. As against the latter part of the trial Court's decision, the landlord preferred an appeal and the lower appellate Court concurred with the decision of the trial Court. Hence this second appeal.

(2.) The controversy centred round the character of the land consisting in plot 763, in relation to the nature of the rent payable. The landlord claims that it is partly cash rent paying and partly bhaoli, while the defendant claims it to be nakdi only. The landlord produced certified copy of the khatian of the land in dispute. The entry whereof runs as follows: "Mango trees 16, seesum 28, mahua 1, jack tree, khaira 1, Gabhdar 2, baqabze malik wo raiyat bhauli nisf nisf." The tenant's copy of the khatian Ex. A is a copy of Ex. 2 except the word "bhauli" not being there between the terms "raiyat" on one side and "nisf nisf" on the other. The trial Court gave preference to Ex. A expressing himself to say that as Ex. A is the original it could be taken to be more authentic than the copy. He, therefore, held that it was a cash paying land and the landlord's claim in respect thereof was to be governed by Section 23-A, Sub-section (a) and the proviso. Section 28-A Sub-section (a) provides that when a raiyat has a right of occupancy in respect of any land of which the rent is paid in cash, the raiyat may appropriate the flowers, fruits and other products of any trees or bamboos standing on such land provided that if there is a specific entry in the latest record of rights regarding any tree which was standing on any land specified in Clause (a) before the date of the final publication of such record of rights, the rights of the landlord and the raiyat in the timber of such tree shall be in accordance with such entry or with any decision of a Civil Court affecting such entry. Construing this provision of law, he found that the landlord's right to get a share of the produce of the trees--in the present case the mangoes--has been abrogated by the Legislature. It is only his right to timber of the tree that has been retained by the proviso. With this reasoning he dismissed the plaintiff's claim as already stated.

(3.) The lower appellate Court disagreed and differed from the Munsif with regard to his reading of the khatians, but agreed with him that it was cash paying because while casting the total of cash rent paying lands and bhaoli lands comprised in the holding the disputed land is shown as cash paying. Holding, therefore, as he did that it was cash paying he also agreed with the Munsif in dismissing the plaintiff's suit for the same reasons.