BIRENDRA KISHORE MANIKYA BAHADUR Vs. ALI AHAMED

JUDGEMENT

(1.) These are appeals by the landlord against the decision of the Special Judge, affirming the decision of the Revenue Officer, by which the applications of the appellant under Section 105 of the Bengal Tenancy Act for settlement of fair and equitable rent of certain tenures were dismissed. The applications were in substance for enhancement of rent. The facts briefly stated are these : These tenures are within an estate which was known as 4 annas hissa of Pergana Dandra and were in existence from long before the Decennial Settlement. The proprietor of the estate Mahammad Ali Chowdhury was imprisoned for life as a rebel and his estate was confiscated by Government by an order, dated 8 February, 1793. There were 45 taluks and 38 tappas within the property and certain other lands, but with these last the present appeals have no concern. The Collector of Tipperah made dowl settlements with the talukdars. In those dowls only the rents were specified, but the area of any of the taluks was not defined. Government collected the revenue by farming out the zemindary for some years, but subsequently realised the dues from the tenure-holders directly. Malikana was paid to the heirs of Mahammad Ali for some time, but it was discontinued when it was found to have been done under a mistake. Difficulties arose with regard to the management of the zamindary mainly because the areas of the taluks were not specified and the revenue officers proceeded to assess the jama of the taluks with reference to the areas. One of the talukdars brought a suit in the civil Court for setting aside the jamabandimade with regard to his taluk. He was successful in the trial Court and in the Court of first appeal, but in 1847 the Sadar Dewany Adalat in special appeal held that the civil Court had no jurisdiction in the matter and dismissed the suit. In the result jamas were settled with regard to the tenures in 1848 and it was directed that the settlement would be for a period of 30 years. The Assistant Settlement Officer however finds that there is clear and incontrovertible evidence that the tenure-holders did not agree to this assessment and lost one-third deductions to which they would otherwise have been entitled, the rights of the talukdars were not judicially determined and it appears that they had to submit to the assessment under compulsion. The tappas were twice surveyed and assessed, once in 1824 and again in 1848 and settled similarly as the taluks. The tenure- holders to whom these appeals relate have been paying the same jama since 1848. In 1869 the taluks, tappas and other lands in the 4 annas hissa were made a zemindary and permanently settled with Asima Banu an heir of Mahomrnad Ali and Bharat Ohundra Deb who had purchased the interest of the other heirs of Mahommad Ali. The present plaintiff purchased the zemindary in 1880.

(2.) The Assistant Settlement Officer divided the tenures into 5 classes according to their description; for the purpose of his decision. He placed the taluks in classes A and B and the tappas in class C. The lands in classes I and E do not appear to be the subject of dispute in these appeals and no argument was addressed to us on any matter relating to them. With regard to the questions involved in these appeals, the Assistant Settlement Officer held that the taluks in class A were of the description mentioned in Section 1 of Regulation I of 1793 and Section 4 of Regulation III of. 1793 (or in other words they were independent taluks), but that they have now lost that character. He however held with regard to all the three classes of tenures that they were in existence from the Permanent Settlement and are subject to enhancement of rent only according to the provisions of Section 6 of the Bengal Tenancy Act, and that the plaintiff has failed to prove "local custom" or "conditions" mentioned in Clause (a) of that section. He therefore dismissed the applications of the plaintiff. On appeal the Special Judge affirmed that decision, but he held also that the tenures were independent taluks. He observes : " These tappas and taluks were all along mentioned as being Decennial ones which under Regulation I of 1793 mean to be independent taluks. Anyhow on a careful consideration of all the circumstances urged on all sides, we think the zemindar who derived his right in 1869 long after the creation of these taluks had no right to treat them as dependent taluks and on variable rents. Prom 1848 to 1869 they also paid uniform rents and previous to 1848, there having been no ascertainment of definite area it cannot be properly said that the rents of these taluks varied. If there was any increase it was for excess area. We therefore find that there is no good ground to assert that these taluks are on enhancible rents and that the plaintiff has any right to demand enhancement of rents under Secs.6 and 7, Bengal Tenancy Act. The presumption of Khatians is clearly rebutted." On these findings the appeals were dismissed and the learned Judge did not consider the other points raised before him. Before we deal with the questions raised before us by the appellants we should mention that a certain number of appeals had abated against some of the respondents owing to their death. Applications for substitution of their heirs and for setting aside the abatement were made long after the period of limitation. No order setting aside the abatements was made but the order of the Court was this : "Subject to objection at the hearing, let the substitution be made as prayed, and let the usual notices be issued." In those appeals in which objection was made before us at the hearing we did not see any reason for setting aside the abatement and they were ultimately dismissed as not maintainable. In other appeals in which no objection has been taken we set aside the abatement and heard them along with the rest.

(3.) Two questions only have been raised before us on behalf of the appellant: (1) that the taluks are not independent taluks and even if they were so, the talukdars who pay rent to the zemindars come within the provisions of Secs.6 and 7 of the Bengal Tenancy Act; and (2) that the tenures are not held at a fixed rent but at a rent liable to enhancement.