KHEMAJIT MAHTON Vs. NAURANGI SINGH

JUDGEMENT

(1.) This appeal raised a rather nice question which is one of some difficulty. The action out of which the appeal arises was for produce rent. The learned Judges have come to certain conclusions as regards the quantity of produce which in ordinary circumstances would clearly be decisions on facts and which this Court would have no jurisdiction to set aside in second appeal. However, having regard to the circumstances to which I shall in a moment refer, there does appear to be a somewhat difficulty question of law to decide. The difficulty arises not by reason of any inherent difficulty with regard to the law itself, but its application to this particular case. The point will be indicated if I state a few necessary facts.

(2.) The suit was for the years 1334, 1335 and 1336. It would appear that the defendants had set up a plea of what was described by the judgment of the Court below as a tender, and also that they had divided the crops. As regards the division there can be no question as from the finding of the Court below it is quite clear that there was no such division; but the lower appellate Court has decided that as regards the year 1335 there was what he describes as a tender. It was not a tender in the strict sense of the word, but it was a notice by the tenant to the landlord to come and appraise and divide the crops. For the reason that he has found that this notice was given in that year he has come to the conclusion that the amount of produce as stated by the defendants should be accepted, and he has decided accordingly.

(3.) So far as that year is concerned he has deliberately refrained from giving the plaintiff landlord damages. So-far as the year 133d is concerned as the decision which he has come to is a decision on the facts, the appeal is determined by that decision of the learned Judge in the Court below. We are concerned therefore only with the years 1334 and 1336. It appears that the same defence which was set up as regards the year 1335 was put forward as regard these two years 1334 and 1336 but it was disbelieved. In those circumstances the question which comes to be determined is what is the proper construction of Section 71, Bengal Tenancy Act, as applied to this case.