SRIKANTA MRIDHA Vs. PRAFULLYA CHANDRA GHOSH

JUDGEMENT

(1.) This appeal is on behalf of the defendants and it arises out of a suit commenced by the plaintiffs for recovery of j arrears of rent in respect of a Darganti for the years 1341 to 1343 B.S. together with cesses and interest on the basis of a kabuliat executed by the defendants predecessors in the year 1294 B.S. The lands are situated within a temporary settled estate and were originally jungle lands. The plaintiffs based their claim upon a kabuliat which was executed in 1294 and by which two persons, Chandra Mandal and Kamal Mandal, took lease of the disputed lands which were stated to cover an area of two hundred bighas. The kabuliat provided for progressive rents for successive years and mentioned a maximum which could never be increased, and it further provided that in case of default in the payment of any instalment of rent, the tenants would have to pay interest at the rate of 371/2 per cent. per annum. It appears that in the year 1932 there was a resettlement of revenue and rent under part II, chap. 10, Ben. Ten. Act, and the annual rent payable by the defendants was increased to Rs. 388. The whole controversy now centres round the point as to whether the plaintiffs are entitled to recover interest on arrears of rent at the rate of 371/2 per cent. per annum. The trial Court decided this point against the plaintiffs and was of opinion that under Section 178, Sub-section (1), Clause (i), Ben. Ten. Act, the landlord cannot get interest at a rate higher than that provided for in Section 67, Ben. Ten. Act. The lower appellate Court, on the other hand, has come to the conclusion that the case comes under proviso 1 to Section 178 and the plaintiffs are entitled to get interest at the contract rate. It is the propriety of this decision that has been assailed before me in this second appeal.

(2.) It is not disputed that under Section 178, Sub-section (1), Clause (i) the landlord is incapable of recovering interest on the basis of any contract entered into either before or after the Bengal Tenancy Act beyond what is Laid down in Section 67, Ben. Ten. Act. The question is whether the plaintiffs can, in the present circumstances of the case, invoke the assistance of proviso 1 to Section 178, as has been held by the lower appellate Court. Mr. Sitaram Bannerjee, who appears for the appellants, has argued in the first place that this proviso is really engrafted upon and controls Sub-section (3) of Section 178 and not Sub-section (1) which makes unenforceable any contract between the landlord and tenant affecting, the provisions of Section 67, Ben. Ten. Act. It is argued also, though somewhat faintly, that the lease is not a reclamation lease and hence does not attract the operation of the proviso. I do not think that I can accept this contention as sound. The opening words of the proviso indicate beyond doubt that it is a limitation upon the entire section and not upon Sub-section (3) only. The words are "nothing in this section which affects etc. etc." If therefore the lease was granted bona fide for reclamation of waste lands, proviso 1 will apply and any stipulation for payment of interest, even though it contravened Section 67, Ben. Ten. Act, will be valid and operative: vide Upendra Nath V/s. Surendra Nath Roy Sircar ( 35) 63 C.L.J. 283. On the question as to whether the lease was a reclamation lease or not, the only thing that has been pointed out by Mr. Bannerjee is that there is no provision in the kabuliat that the lessee will forfeit his rights if the reclamation was not made within a particular period. I do not think that a stipulation is essential. The lands are admittedly jungle lands and the fact that no rent was to be paid for the first years and then also it was payable at a progressive rate from year to year till the maximum was reached show beyond doubt that it was a reclamation lease. I agree therefore with the lower appellate Court in holding that the stipulation regarding the payment of interest at the rate of 371/2 per cent. per annum is not hit by Section 178, Sub- section (1), Clause (i), Ben. Ten. Act.

(3.) It is next contended by Mr. Bannerjee that the stipulation in the kabuliat ceased to be operative as soon as the plaintiffs themselves got a fresh lease from the Government in the year 1931 and a fresh settlement of rent was made under Part II, Chap. 10 Ben. Ten. Act. In my opinion, this contention also cannot prevail. As was Laid down by the Judicial Committee in Pria Nath Das V/s. Ramtaran Chatterjee ( 03) 30 Cal. 811, a fresh settlement would not abrogate the rights of the tenant if the landlord got a lease from the Government and was in a position to fulfil his obligations to the tenant. If the kabuliat in this case had been created prior to the Bengal Tenancy Act, the defendants could have argued on the authority of the case in Prafulla Nath V/s. T.C. Tweedie (Receiver) ( 22) 9 A.I.R. 1922 Cal. 248, that the rent could not be enhanced by the settlement authorities in the resettlement proceedings. But as the lease here was after the passing of the Bengal Tenancy Act, the provisions of Section 191, Ben. Ten. Act, are applicable and the settlement authorities have jurisdiction to enhance the rent; the other covenants in the lease however remain intact and binding between the parties.