RAM LAL DUTT SARKAR Vs. DHIRENDRA NATH ROY

JUDGEMENT

(1.) This appeal is brought by special leave from a decree dated 29 March 1938 passed by the High Court at Calcutta on second appeal. The respondents have not appeared before the Board and Mr. Wallach for the appellant has carefully discharged his duty to see that all relevant matters are placed before their Lordships. The decree under appeal reversed the decrees of the Additional District Judge and Subordinate Judge at Faridpur dated respectively 17 April 1935 and 6 February 1933. The suit was begun on 15 April 1931. It was a suit for three years' rent of a permanent tenure which had been granted by the predecessors of the plaintiffs and of certain pro forma defendants to one Srinath Sarkar by a patta dated 8 July 1875 and for which a kabuliyat had been executed by Srinath on 22 May, 1877. He was engaged on zemindari management in the service of the plaintiffs' predecessors who granted him the patta. He died childless in 1890 and his widow Patambari Dassee succeeded him as tenure-holder. She died on 3 March 1930 whereupon the appellant and his two brothers succeeded as her husband's reversioners. They were not originally made parties to the suit but were added on their own application. The appellant has since acquired his brothers' interests. His defence to the suit is that part of the lands comprised in the patta of 1875 were demised at a lump sum rent, and that, as the plaintiffs or their predecessors some time in the 'eighties of last century dispossessed Srinath of portion of these lands measuring some 37 acres and worth about Rs.56 per annum, no part of that rent is payable by him : his right being to a suspension of the entire rent until the lands in question are restored to him. The trial Court and the lower appellate Court sustained his defence and dismissed the claim for rent. The High Court, on second appeal, remanded the case for calculation of the proper abatement of rent to be allowed to the appellant. His main grievance is that the learned Judges of the High Court have contrary to Ss.100 and 101, Civil PC, set aside the lower appellate Court's finding of fact that the plaintiffs' predecessors gave possession of the 37 acres to Srinath and thereafter dispossessed him.

(2.) The grantors of the tenure were certain persons called Rai-members of a family who owned the zemindari of a place in Jessore district called Narail and who are referred to as the Narail Babus. Of these certain members owning a one-sixth interest were not parties to the patta of 1875 but the other members demised thereby the remaining five-sixths share in a mouza called Orakandi said to have an area of 1,464 bighas after deduction of certain revenue-free lands and village pathways. For 822 bighas then in the occupation of raiyats the rent reserved was Rs. 957-14-8. For a further 4 bighas 13 cottahs-a small cultivated area held in khas - the rent was to be Rs. 4-11-0 at Re. 1 per bigha. For a further area of 635 bighas which included patit or waste land rent was fixed at Rs. 317-15-9, but it was to remain rasad (in abeyance); payment being made at Re.1 per bigha for such area as was found to be tilled in 1876 and at eight annas for the further areas found tilled in later years. The claim for rent in the present suit does not include any of this rasad rent but is for Rs. 770-1-4 the plaintiffs, proportion of the sum of Rs. 962-9-8-that is 957-14-8 plus 4,11-0-together with certain cesses. The sum of Rs. 962-9-8 is called in the patta the talabi jama or demandable rent. As to Rs. 957-14-8 it appears to their Lordships to be a lump sum rent in respect of a five-sixths share in 822 bighas 19 cottahs 6 chittahs.

(3.) In 1906 or 1907, in the course of the survey and settlement then being carried out the lands of khatians 1 to 17 inclusive were entered as in the occupation of raiyats paying rent to the Narail Babus, including the plaintiffs. Of these the lands of eight khatians-3,4,6,11,13,14,15 and 17-are claimed by the appellant to be part of the 822 bighas which were settled at a lamp sum rent. These lands amount in area to some 37 acres and their rentals to about Rs.56. Much time was devoted at the trial to the plaintiffs' contention that these lands are not part of the 822 bighas but lands belonging to Ratna-danga Bil and Patiladanga Bil-marshy areas which according to the plaintiffs were outside the mouza of Orakandi referred to in the patta of 1875. A further contention of the plaintiffs was that some lands held by tenants under them were chhit or detached lands of another mouza called Aruakandi. Bat it has been held by the trial Court and by the lower appellate Court that mouza Orakandi included these two bils and that the 37 acres now in question were part of the raiyati area of 1875 (1282 B.S.) -part that is of the 822 bighas which bore the lump sum rent of Rs.957-14-8. This must now be accepted.