APCAR COLLIERIES LTD Vs. RADHA GOBINDA ROY

JUDGEMENT

(1.) Three quarters of a century back, on or about 20-8-1878, the appellants' predecessors took permanent settlement of the underground rights in the lands in suit from the respondents' predecessors. The relevant kabuliyat which was described as a "Mokrari Taluka Kabuliyat" was duly registered in accordance with law and a certified copy thereof is Ext. 1 in the present case. It appears from the kabuliyat (Ext. 1) that the lessees had also certain rights in the corresponding surface land. A selami of Rs. 5,039/8/- was paid at the time of the settlement and the annual rent or jama was fixed at "Company's current sicca Rs. 503978/-". This total rent was mentioned in the schedule of the kabuliyat as "Rs. 5,039/8/-" and was payable in eleven kists or instalments of Rs. 420/- each in each of the months of Bhadra to Asar of each Bengali year and a twelfth monthly kist or instalment of Rs. 419/8/-in Sraban following. The lessees stipulated for themselves and their heirs to pay the lessors and their heirs "the fixed rent, year after year, month after month, according to the kists" stated above, with a further stipulation that "on failure of the kists, we shall pay interest according to law and we shall pay the rent by the 30th Chaitra, the close of the year" and "on failure to do so, you shall bring a suit for arrears of rent." There is no dispute that the appellants, the Apcar Collieries Limited, are the present tenants, and the respondent No. 1, Radhagobind Roy, and the other respondents are the present landlords; nor is there any dispute that the tenancy is held on the stipulations, as contained in Ext. 1, to the relevant terms whereof reference has already been made. It is also undisputed that in the c. s. kha-tian, published several years ago, the jama was recorded as "Rs. 5039/8/- per annum."

(2.) The relationship between the parties appears to have been fairly cordial for over half a century. But then trouble started near about 1935-36 over, presumably, the payment of cess and sometime in the year 1938, the matter came to Court in Rent Suit No. 4 of 1938 before the Subordinate Judge of Asansol at the instance of the plaintiffs landlords. The landlords' claim for cess was dis- allowed by the learned trial Judge, but on appeal to this Court (F. A. 9 of 1939), that decision was reversed and the matter was sent back for reconsideration in the light of certain directions given in the appellate judgment. At the rehearing also, the plaintiffs failed to get any relief and the appeal that followed, viz., F. A. 134 of 1943, also proved unsuccessful. These proceedings terminated sometime in May 1943. But fresh disputes cropped up between the parties, -- this time with regard to the amount of the annual rent, payable under the kabuliyat Ext. 1, and the payment of interest, as stipulated therein, -- and the result was the present suit (M. S. No. 11 of 1946) which was instituted by the plaintiffs-landlords against the tenant-defendant, the appellant company, the Apcar Collieries Limited, before the learned Subordinate Judge at Asansol on 15-4-1946.

(3.) In the suit, the plaintiffs laid their claim for rent on the basis of Rs. 5375-7-9 gds., 1 kara and 1 kranti per annum their case being that, under the kabuliat Ext. 1, the annual jama was Rs. 5039/8/- in sicca coins equivalent to the above figure of Rs. 5,375-7-9 gds., 1 kara and 1 kranti in current coins, and they also claimed interest at the legal rate, as provided in the said kabuliat Ext. 1, on account of the defendant's default in the payment of the rent kists, as mentioned therein, the rate of interest claimed in the plaint, being Re. 1/- per cent. per month. The defendant company contested the suit and in their written statement they denied that the rent was as claimed by the plaintiffs and they also repudiated the plaintiffs' claim for interest. According to their defence, the rent was Rs. 5039/8/- per annum in "current coin of the realm" under the kabuliat Ext. 1, and "not in sicca coin which was not in use at all at the time when the lease (in question) was executed" and, with regard to interest the averment was that there was no default on the company's part in the payment of rent, but that the rent had remained unpaid due to wrongful refusal on the plaintiffs' part to accept the same.