MAHANTH DWARKA DASS Vs. BHEKHU MAHTON

JUDGEMENT

(1.) In the Record of Eights of Ghanipur in Muzaffarpur district the occupier of the land covered by khatian No. 254 is recorded as a settled raiyat of the village liable to pay rent at rupees 53-2.6 a year. There is an entry to the-effect that at the end of the year the raiyat receives Rs. 12 as haqazri on condition of his having worked for the landlord. The Record of Eights does not specify the nature of the duty; but it is agreed that the duties which were rendered were those of a jeth raiyat assisting the landlord in the collection of rent. The holding has now been partitioned with the result that there are three holdings, one occupier having taken half of the original holding and two other a quarter each. The landlord instituted three suits for rent claiming the proportionate amount, Rs. 53.2-6, from each of the tenants; but the tenants contended that the right to deduct Rs. 12 was an incident of the tenancy so that the occupier of the half holding was entitled to deduct Rs. 6 and the other two raiyats were entitled to deduct Rs. 3 each.

(2.) The landlord had-dispensed with the services of the jeth raiyat and he therefore claimed that h& was entitled to the full rent of the holding. The Munsif held that as the right to deduct Rs. 12 was entered in the Record of Right a in a column which contained the incident a of the tenancy, this right must be considered an incident of the tenancy, which must be treated as a grant burdened with service, of which the tenants were entitled to take advantage so long as they were willing to render the services, whether the landlord required the services or not. The decision was affirmed on appeal by the Subordinate Judge; and the landlord has now come to this Court in second appeal.

(3.) A preliminary ground of objection to the appeals is taken on behalf of the respondents that the provisions of Section 153, Bihar Tenancy Act, bar a second appeal in this case. The respondents rely on the decision in Safait Hossain v. Waizudin A.I.R (1917) . Pat. 504 wherein it was held that mafi allowed to a jeth- raiyat in lieu of wages was not rent, and that a dispute as to whether the mafi could be claimed or not was not a dispute relating to the amount of rent payable for the holding. It does not appear from the judgment in that case that the jeth- raiyat had been relieved of his duties or that right to pay lower rent was claimed irrespective of whether the duties had been performed or not. In the present case where the jeth-raiyat has been relieved of his duties by the landlord, the question of whether the tenants are liable to pay at the rate of Rs. 53.2-6 or at Rs. 41-2.6 should, in our judgment, be treated as a dispute regarding the amount of rent annually payable by the tenant. It is also to be observed that the claim of the tenants which has been allowed by the Courts below amounts to a claim that their holding is something other than an occupancy holding, that they hold under a grant burdened with service; and the dispute regarding the status of the tenants raises a question relating to an interest in land which has been decided by the decree under appeal. We consider therefore that this appeal is admissible under Section 153, Bihar Tenancy Act.