- (1.) THIS is a revision application under sec. 26 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act against an appellate decree of the Additional Commissioner, Jaipur, dated 6.9.1954 upholding the appellate decree of the Additional Collector, Jaipur, dated 27.5.1954 which in turn upheld the decree of the trial court dated 17.10.1951, whereby the applicant -plaintiffs suit, for recovery of arrears of rent was dismissed.
(2.) PUT briefly the facts of the case are that in June, 1948 the, applicant instituted two suits for recovery of arrears of rent in respect of the holding in dispute against defendants under sec. 122 of the Jaipur State -Grants Land Tenures Act, one suit relating to arrears for Svt. 2004 and the other Svt. 2005. The Tehsildar Jaipur who tried these suits consolidated them into one. The averments in the plaint were that the plaintiff is the State grantee - inami -of the land in dispute that the defendants were admitted to tenancy by the father of the plaintiff and that they are liable to pay rent amounting to Rs. 108/15/9 for each year, Svt. 2004 & S. 2005, calculated alt the area of the crop and the rate of rent therefore as given in the plaints. The defendants in their written statement dated 23.8.1949 pleaded that they hold the land under a ijara for 11 years commencing from Svt. 2002 at the rate of 8 maunds barley for each year. In the written statement filed subsequently by the defendants on 25.3.1950 it was pleaded that the defendants were not the tenants but the mortgagees of the land in dispute, that no rent was ever paid by them in the past and that the amount of rent fixed in the plaint is imaginary. It was also alleged that the mortgage was not capable of redemption now as the limitation prescribed therefor had expired. The Tehsildar held that the plaintiff was the State -grantee; and that the defendants were admitted as tenants, As for the rent payable by the defendants to the plaintiff the trial court held that the plaintiff had failed to prove that Rs, 108/15/9 were due to the plaintiff. It was also held by the trial court that the defendants were the mortgagees of the land in dispute. With these findings the suits were dismissed. The learned Additional Collector contented himself with the observation that the decision awarded by the trial court was correct and called for no interference. A glance at the record of the Additional Collectors court shows that the arguments in the appeal were heard on 28.8.1953 and the judgment was to be announced on 15 -9.1953. It is simply shocking to learn that the case had to be adjourned as many as 18 times, merely for pronouncing the judgment. It was only on 27.7.1954 exactly 11 months after hearing the arguments that the judgment was pronounced. The judgment is the very negation of a judgment of the appellate court. Apparently the learned Additional Collector applied his mind neither to the points involved for determination in the case, nor to the evidence led by the parties and it is no wonder, there, fore, that he simply reproduced the judgment of the trial court and observed in the end that the trial court had come to a correct conclusion in the case. In fact the trial court had also omitted to examine carefully the evidence of the parties and under the circumstances the first appellate court would have been well advised in examining the evidence. The tendency to evade writing judgments immediately or as soon as possible after hearing the arguments cannot be condemned too severely. The arguments addressed at the bar, after a considerable period has elapsed; cannot be retained vividly or exhaustively even by the best memories A presiding officer is expected to so arrange his work as to find time for writing out judgments in completed cases even if he has multifarious duties to attend to. A failure in this direction is a manifestation of ones inability to cope with the work rather than of an abnormal magnitude of the work itself. However, a redeeming feature in the case is that the learned Additional Commissioner proved it in a highly searching and careful manner. The contradictory findings given by the trial court were detected and the evidence on record was examined with a view to arrive at a sensible finding. The learned Additional Commissioner has held that the relationship of a landholder and tenant exists between the parties but as the rent has not been fixed as yet no suit for recovery of arrears can lie. This is, in affect, the basis of the decision of the second appellate court. Hence this revision by the unsuccessful plaintiff.
(3.) NO serious efforts were made by the parties before me to challenge the finding of fact arrived at by the learned Additional Commissioner. Going through the evidence I find myself in agreement with the lower appellate court on the point that the plea of mortgage set up the opposite party does not stand proved. In fact it was conceived at a later stage. The earliest plea was about the ijara for II years at the rate of 8 Mds. of barley per year. This was subsequently discarded in favour of the mortgage -plea. The mellowness of both these pleas stands self -exposed and the defendants have no other status but that of the tenants of the plaintiff. It is also in evidence that no rent had hitherto been paid by the defendants and that these exists no decree or order of a court or a written compromise between the parties about the amount of rent. The applicants contention before me is that the rate of rent claimed in the plaint corresponds to that prevailing in the adjoining khalsa areas. I have no hesitation in holding that even if it were correct it cannot provide a basis for claiming arrears of rent. Sec. 132 of the Jaipur -Grants Land Tenures Act has been wrongly referred to by the applicant. The plaintiff had failed to establish that rent was payable either by an estimate or appraisement of the standing crop or by a division of the produce and unless this is done sec. 122 cannot be called into operation. A rent to be in arrear should be a rent which is fixed for payment. As laid down in sec. 120 of the Jaipur State Grants Land Tenures Act any instalment of rent not paid on or before the day when it falls due becomes an arrear on the day following the day it fell due. If no rent is fixed nor is any day fixed for payment it cannot be said that any rent has become due on any day. The plaintiff could not have under he circumstances sued for arrears of rent. His remedy lay in bringing a suit under sec. 96 of the Jaipur State -Grants Land Tenures Act which runs as follows: - - "96. (1) When no rent has been fixed and any person has been admitted to the occupation of land or permitted to retain possession of land, by any one having a right to admit or permit him with the intention that a contract of tenancy should thereby be effected, either he or the person entitled to admit or permit him may, at any time during the period of occupation or within three years after the expiry of such period, sue to have rent fixed thereon and, subject to the law of limitation as to arrears of rent, for a decree for arrears of such rent. (2) In a suit under sub -sec. (1) the rent shall be decreed: - - (a) in the case of a khatedar tenant, at the rates fixed at the last settlement or revision thereof. (b) in the case of a ghair khatedar tenant, at such rates with an addition of not more than twenty -five per cent, and (c) in the case of a sub -tenant, at such rates with an addition not exceeding fifty per cent. (3) Where in any such suit the court has reason to believe that the soil -class of the land forming the subject matter of the suit has undergone a material change since the last settlement of revision thereof, it shall make a local inspection or cause such inspection to be made and shall determine the soil -class afresh." A somewhat similar provision is to be found in sec. 94 of the U. P. Tenancy Act, 1939. Sec. 148 of the U.P. Tenancy Act provides for suits for recovery of arrears of rent. This provision has been reproduced in sec. 65 of the Jaipur Tenancy Act which has been made applicable to State grants as will by virtue of sec. 121 of the Jaipur State -Grants Land Tenures Act. The legal provision on the subject are therefore, similar in the Jaipur State Grants Land Tenures Act, and U.P. Tenancy Act. It is settled law that if no rent is fixed of a holding or agreed upon, the court cannot assess and declare the rent in suit for arrear of rent and pass a decree. (Bilgramis U.P. Tenancy Act, 1950 Edition page 769). In Dharmi Bai vs. Girdhari 2 R.D. it was held that "where a tenant enters into a holding with the consent of the landlord but no right of rent is agreed upon the letter cannot realise arrears unless he first gets the rent payable by the tenant declared by a suit and if he does not get the rent so declared he can get only such rent as the tenant admits". In A.I.R. 1938 Allahabad 617 it was laid down that "if the rent is unsettled the proper course for the plaintiff is to have the rent first fixed by bringing a suit, as it is not competent for a court to fix the rent in a suit for arrears of rent, A decree for arrears of rent can be granted only if the rent is fixed form before". In the present case no rent has been fixed as yet not was any rent paid previously. Hence the plaintiffs suit for recovery of arrears* of rent must fail. The plaintiff may bring a suit under sec. 96 of the Jaipur State -Grants Land Tenures Act if so advised for determination of tent and for such arrears as may be within the law of limitation. The learned counsel appearing for the applicant however, argued that he may be allowed to amend the plaint. I refuse to request this request for the obvious reason that it would entirely change the nature of the suit. The revision is hereby rejected.;