JAGMOHAN SINGH Vs. RAMNANDAN PRASAD NARAYAN SINGH

JUDGEMENT

(1.) This is a Letters Patent appeal from a decision of Wort J. in a second appeal. The suit out of which the appeal arises was brought by the plaintiffs for rent for the years 1343 and 1344 P. that is for the period from 13 September 1935 to 20 September 1937.

(2.) The rent was bhaoli rent, and the plaintiffs claimed 50 per cent, of the produce of land and 50 per cent, of the produce of certain fruit trees. The learned Munsif assessed the outturn of the land at 5 mds. per bigha and decreed the plaintiffs claim accordingly granting the plaintiffs also damages at the rate of 7 per cent. On appeal the lower appellate Court held that the outturn was 9 mds. per bigha and modified the decree accordingly, the other terms being left undisturbed. Prom the decree of the lower appellate Court, the defendants preferred a second appeal to this Court which was heard by Wort J. In that appeal it was urged that the lower Courts were wrong in giving the plaintiffs 50 per cent, of the produce. According to the defendants, the plaintiffs were not entitled to more than 9/20ths and further they were not entitled to interest at a rate higher than 6jth per cent. Wort J. rejected these contentions and dismissed the appeal, hence the present Letters Patent appeal.

(3.) With regard to the produce of the fruit trees, it is urged that by reason of amendments to the Bihar Tenancy Act which were made in 1938 the landlord was not entitled to more than 9/20ths of the produce; Wort J. observes that no point was taken with regard to the fruit trees in the memorandum of appeal and he did not allow the point to be raised. Further, it would appear that any amendment of the law with respect to the fruit trees did not come into force until this case had actually been decided by the learned Munsif. I see no reason to differ from the learned Judge with respect to the fruit trees. The main point argued in the case was that the lower Courts were wrong in giving the plaintiffs 50 per cent, of the produce, and reliance was placed on the present, Section 178B, Bihar Tenancy Act. Section MSB; was: introduced into the Act by Section 34 of Act 8 of 1937, which came into force on 10 March 1938. Section 178B is in these terms: Nothing in any contract, express or implied, between a landlord and a raiyat made before or after the commencement of the Bihar Tenancy (Amendment) Act, 1937, shall entitle the landlord to more than nine- twentieths of the produce as rent in respect of an occupancy holding if rent is payable in kind by division of the produce.