RAJA DURGA PRASAD SINGH Vs. RAJENDRA NARAIN BAGCHI

JUDGEMENT

(1.) This is an appeal by Raja Durga Prasad Singh, the plaintiff, from a decree, dated the 26th August 1909 of the High Court at Calcutta, which varied a decree, dated the 27th April 1907, of the Subordinate Judge of Manbhum, in a suit for arrears of rent, cesses, and interest, which was brought on the 15th August 1906, in the Court of the Subordinate Judge of Manbhum, upon a mokurari kabuliyat of the 3rd December, 1894.

(2.) The kabuliyat was executed by Rajendra Narayan Bagchi, now dead, who, with others who derived title through him, was a defendant to the suit. The pottah, corresponding to the kabuliyat, was executed by Raja Jaimangal Singh, now dead the original lessor, whose interest vested before suit in the plaintiff. In the kabuliyat, Rajendra Narayan Bagchi acknowledged having received from Raja Jaimangal Singh a pottah corresponding to the kabuliyat, and stated that -On the agreement that the heirs and representatives of both of us, yourself and myself, shall be bound by all the terms and conditions of the pottah and this kabuliyat, I execute this mokurari maurasi kabuliyat." The pottah has not been put in evidence in this suit, but it has not been suggested by either side that it differs in any material respect from the kabuliyat or that anything turns upon the construction of the pottah.

(3.) The material words of the kabuliyat so far as it affects the matters in issue in the suit are as follows :- I, having applied to got from you a settlement of the rights of cutting, raising, and selling, etc., the coal underneath the 4oo bighas of land de- Boribed in the schedule below, within mouzah Dobari, in pergunnah Jharia, recorded in towzi No. 8 of the district Manbhum Collectorate, and which is within the zamiudari owned and possessed by you in ancestral right, and you having granted my application, I hereby execute to you a mokurari permanent maurasi kabuliyat for 400 bighas of land as per boundaries below, within the said mounah and which will be enclosed by me on putting up masonry pillars at my own cost and according to demarcation made by you for your taking from me Ks. 8,400 as salami, and fixing an annual mokurari rental of Rs. 2,800 for the rights in coal under the said 400 bighas of land and I agree that year after year and according to the instalments, I shall pay to you into your zamindari kachari, every year in three instalments, the fixed rental and also the road and public works cesses and other taxes and cesses payable by me according to law, that may be imposed in future by Government, namely, in Sraban of each year, Rs. 900, in Aghran Rs. 900, and in Chaitra Rs. 1,000 out of the rental fixed and after taking dakhilas for the same according to the usage in vogue in your serishta, I shall thereupon enjoy and continue to enjoy from generation to generation all the rights in the coal under the 400 bighas by cutting, raising and selling the same, after making the said coal fit for the market, and vested with the power of gift, sale and all kinds of assignment of the same according to pleasure. The rental fixed shall never on any account be varied. ...If I fail to pay any instalment of the rent or cesses then for the unpaid instalment money, I shall pay interest at the rate of rupee one per cent, per mensem from the date of the lapsed instalment till the date of payment. If I fail to pay six consecutive instalments of the rent or cesses, & c,. then on the next date of instalment you will be entitled to bring the settled coal laudts into your khas possession.... According to this kabuliyat I become vested with the right and title to the coal under the settled land from to-day. I shall have to pay nothing for the year 1301 B. 8. as rent or cesses, & c,. From the year 1302 B.S., I shall continue to pay the entire rent Rs. 2,800 by proper instalments. You are not liable to me for the return of the above amount of selami (premium) or for any other matter.