ABINAS CHANDRA DAS Vs. MAJUB ALI CHOWDHURY

JUDGEMENT

(1.) These twenty-one appeals arise out of as many applications, made by landlords under sections 105 and 105A of the Bengal Tenancy Act, for settlement of fair and equitable rent in respect of the lands held by their tenants. In the Record of Rights, as finally published, entries had been made to the effect that each tenure was held at a fixed rate of rent. The tenants accordingly contended that the rents were not liable to enhancement. The Assistant Settlement Officer gave effect to this contention, subject to the reservation that excess lands were liable to be assessed with additional rent. Upon appeal, the Special Judge has reversed this decision, and has assessed fair and equitable rent, inasmuch as the tenures were, in his opinion, not held at rates of rent fixed in perpetuity. In this Court, the decision of the special Judge has been assailed on a fourfold ground, namely, first, that upon a true construction of the grant in each case, it should have been held that the tenure was held at a rate of rent fixed in perpetuity; secondly that the tenants were entitled to the benefit of the presumption formulated in Section 50 of the Bengal Tenancy Act; thirdly, that the tenures were protected from enhancement, as they had been continuously in existence and had been held at a uniform rate of rent from a date anterior to the Permanent Settlement of 1793; and, fourthly, that if the rent was liable to enhancement, the provisions of Section 7 of the Bengal Tenancy Act must be strictly followed. It is plain that if the first of these grounds be substantiated, the others do not require examination.

(2.) There is no controversy that the lands of the disputed tenures were originally comprised in a revenue-paying estate which was permanently settled in 1793. The proprietors defaulted, with the result, that the estate was sold for arrears of revenue on the 29 March 1834 when the Government became the purchaser. The lands were kept under the direct management of the Revenue Authorities from 1834 to 1861, when a permanently-settled estate was created in favour of the predecessors of the present plaintiffs. In 1836, while the lands were under the direct management of the Revenue Authorities, settlements were made with tenure-holders who had been in occupation, in many instances, from before the date of the Permanent Settlement of 1793. The question thus arises, whether the rents so settled in 1836 are liable to enhancement or must be deemed to have been fixed in perpetuity by the grants then made. In the construction of these grants, we are hot concerned with the points whether the tenures were in fact in existence in 1793, whether they had been held at a uniform rate of rent since then, or whether by application of Section 50 of the Bengal Tenancy Act they may be presumed to have been so in existence and held at a uniform rate of rent during the period mentioned nor are we called upon to consider, in connection with the question of construction, whether the tenures continued in fact and in law, notwithstanding the sale for arrears of revenue. The construction of the grants must depend upon the interpretation of all the terms of each instrument, and, except in a case to ambiguity, extrinsic evidence would not be admissible; see North Eastern Railway V/s. Hastings (Lord)(1900) A.C. 260 : 69 L.J.Ch. 516 : 82 L.T. 429 : 16 T.L.R. 325; Hebbert V/s. Purchas (1871) 3 P.C. 605 : 7 Moo. P.C. (N.S.) 468 : 40 : L.J. Ecc. 33 : 19 W.R. 898 : 17 E.R. 177; Secretary of State for India V/s. Narendra Nath Mitter 61 Ind. Cas. 91 : 32 C.L.J. 402. As pointed out by the Judicial Committee in Upadrashta Venkata Sastrulu V/s. Divi Seetharamudu 51 Ind. Cas. 304 : 46 I.A. 123 : 30 C.L.J. 441 : 17 A.L.J. 725; 37 M.L.J. 42 : 21 Bom. L.R. 925 : 26 M.L.T. 175 : 10 L.W. 633 : 24 C.W.N. 129 : 43 M. 166 : 2 U.P.L.R. (P.C.) 16 (P.C.) and Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi 68 Ind. Cas. 538 : 31 M.L.T. 54 : 16 L.W. 102 : 45 M. 586 : (1922) M.W.N. 749 : 43 M.L.J. 640 : (1922) A.I.R. (P.C.) A.I.R. (P.C.) 292 (P.C.) each case must be considered on its own facts; in order to ascertain the effect of the grant resort must be had to the terms of the grant itself and to the whole circumstances so far as they can now be ascertained. Nor does the question of burden of proof arise; for as observed in Seturatnam Aiyar V/s. Venkatachala Gounden when the entire evidence on both sides is once before the Court, the debate as to onus is purely academical; the controversy has passed the state at which discussion as to the burden of proof is pertinent; the relevant facts are before the Court and all that remains for decision is, what inference should be drawn from them.

(3.) The grant in each case was made by a document divisible into two parts; the first shows the details of assessment, the second sets out the terms of the settlement. In some instances, the grant included lands described as laik patit, that is, culturable fallow, in other cases, all the culturable lands were under cultivation and there was no culturable follow. The cultivated lands were, in all cases, assessed at the full rate from the commencement; the culturable fallow was not assessed with rent during the first two years. Consequently, in the first class of cases, the full rent did not become payable till after the expiry of two years; in the second class of cases, the full amount became leviable from the commencement. We set out here a specimen of a grant of each type: Down bundobust taluqdari in respect of Taluq Hashim Khasim Mullick, the owners whereof are Alabuksh, Koresh, Pana and Daulat, lying within the Government Khas Mahal Chasla Chamrakhola, Pargana Gopalpur, Mirjanaga, Settlement whereof was recently granted at the time of Srijut Babu Nara Narayan Ray, Deputy Collector, District Bhulua from the year 1243 B.S. and confirmed by the Commissioner. Finis. Dated the 31 August 1836 corresponding to the 17 Bhadra, 1243 B.S. Remaining in possession at a total jama of Rs. 20-15-8 in Company's coin per year from 1243 B.S. to 1244 at the full amounts of jama of Rs. 21-8 in Company's coin per year from 1245 B.S., and for each year, (following), we shall pay the foresaid amounts amounts of malguzari, year after year and month after month, as per the Kistibundi. We shall abide by the laws that are now in force and may be brought into operation in future. We shall not, allow any bad character to reside in the aforesaid-tenor allow any one to manufacture illicit salt, and shall not do anything contrary to law and regulations; if we do, we shall be held responsible for the same. All profits and loss accruing through, draught, inundation, death and desertion, and providential visitations. &c. shall be ours and shall have no concern with Government. Finis. Dated as above. Dowl bandobast taluqdar in respect of Taluq Fatey Manu within Government Khas Mehal Chakley Chamrakhola, Perganah Gopalpur, Mirzanagore, the owners whereof are Sadaraddi, Tomijaddi andMoniraddi, by virtue of recent Settlement granted at the time of Babu Nara Narayan Roy, Deputy Collector, District Bhulua, and confirmed by the Commissioner from the, year 1243 B.S. Finis. Dated 31 August 1836 corresponding to 17 Bhadra 1243 B.S. A taluqdari settlement is made with us-at the full amount of annual jmma of rupees 4 annas 9 and pies 11 from the year 1243 B.S. and for each year(following) Being in possession according to the practice of the taluqdars, we shall pay the aforesaid amounts of malguzari; year after year, month after month, as per the kistbandi. If, we default any kist, we shall pay interest according to law. We shall abide by the laws and regulations now in forcer and. also those that may come into operation in future. We shall not allow any bad character to live within the taluq aforesaid nor allow, any one to manufacture illicit salt nor shall we do anything contrary to laws and regulations If we do so we shall be answerable for the same. All profits and losses accruing from droughts, inundation, death and desertion, and providential visitation, &c, shall be ours and these shall have no concern, with Government. Finis. Dated as above. Having received to my satisfaction a counterpart of this Dowl, I grant this receipt. Finis. Dated 29th, December 1836. Sd. By mark, Tomijaddi.