MAHARAJADHIRAJ KAMESHWAR SINGH BAHADUR Vs. SONEY MISSER

JUDGEMENT

(1.) These are Letters Patent appeals from a decision of Jwala Prasad, J., which arose out of actions for the enhancement of rent. Letters Patent Appeals Nos. 93, 100 and 101, are by the landlord against the decision of Jwala Prasad, J., in which he held, on the construction of certain sanads, that the rents were fixed in perpetuity.; The other appeals which, are now known as Letters Patent Appeals Nos. 94 to 99 were disposed of by the learned Judge who held that the decisions were decisions of facts but no application was made at the time by the learned Advocate on behalf of the tenants for leave to appeal to this Court. Leave is now granted and it is requested that these appeals should be dealt with along with the landlord's appeals to which I have referred. One small technical objection was taken formally, namely, that proper petitions were not filed in all these appeals. But 1 hip quite clearly was due to a misapprehension as to the rule with regard to leave to appeal from the decision of a Single Judge and as there was a petition which incorporated all the defendants appeals with all the parties we think it is a somewhat technical objection and as the point is one of limitation the time will be extended under s.5 of the Limitation Act. Mr. Murari Prasad on behalf of the landlord respondent has agreed to enter appearance in these appeals, so, in the circumstances, they can be dealt with by the judgment which I am delivering in appeals No. 93, 100 and 101.

(2.) Now as regards the three appeals Nos. 93, 100 and 101, the decision depends upon, a proper construction of three sanads which had been filed in the suits by the tenants. It is with same considerable diffidence that I express my view on this matter as the case was made to depend upon the meaning of a vernacular term which Jwala Prasad, J., was necessarily more acquainted with it than I am, but I am emboldened to express the view first, by reason of the fact it is my duty to do so, secondly, because the learned Judge based his judgment very largely upon the meaning of the term given in Wilson's Glossary of words. The expression which had to be construed was waguzasht. The sanads, so far as they are material for the purpose of my judgment, were in these terms. That in Mauza Ahdhrarhari Perg Jabdi within the dehat Milkiat Minhai of myself, you hold from a long time 59 bighas 16 kathas 18 dhurs of Dhanar, Dhit, orchard, Kharhour and pasture, green verdure (Harghasi) lands, the rental payable for which is the 35-8. In respect of that 1 have made a grant (waguzasht) you and your posterity after enjoying the aforesaid lands will pay the rents year after year. So this letter of grant (waguzasht) is written Dated this 13 day of Sawan Sudi 1225 Fal. 2. The learned Judge has stated that in Wilson's Glossary the term "Wagvzasht" means "release from attachment or distraint, relieved from assessment, remitted." Shortly his decision was that as there could have been no case of release from attachment or distraint, the only construction to be placed on the term must be "relieved from assessment", and accordingly held that that meant that the rent, namely, Rs. 35-8 was afixed rent in perpetuity which admitted of no assessment or enhancement. With great respect to the learned Judge I come to a different conclusion. The history of the word, as the learned Judge has observed, indicates, that some claim which has been made by the landlord is remitted or released and indeed in every dictionary and glossary of terms that meaning is emphasised. The same meaning is attached to the word in Fallon's Law and Commercial Dictionary where the meaning is given "as withdrawal or removal of attachment" and the second meaning is "a grant". The grantor may have indeed in this case meant simply "grant" in using the term, but it can be seen that it more nearly indicates certain circumstances Hinder which the landlord was laying a claim of a kind to the land which by the grant he intended to remit or release. That tenement will also indicate that the proper construction to be placed on the word depend's very largely upon the circumstances under which the grant or waguzasht was made. We are entirely ignorant of those circumstances iii this case but we have one fact which, it seems to me, throws some light upon the matter. The Record of Rights was prepared in the year 1900. The tenants for reasons best known to themselves, did not produce these sanads on that occasion; and although it may be that there was no one alive at that time who could have stated what the circumstances, under which the grant was made in the year 1825 were, get there must have been persons alive who had that information passed down to them. In a sense of course, this is a mere speculation, but this much ma be said that the year 1900 was much nearer the date upon which the sanad was executed and in those circumstances it is rather important to notice what I have already stated, namely that the tenants did not produce these sanads. It may be in the circumstances an indication that they themselves did not look upon the Sanads as entitling them to claim the lands that were granted with rents fixed in perpetuity. The reason in itself may be insufficient to come to a conclusion contrary, to that at which the learned Judge had arrived; that it seems to me that the matter is concluded by looking at the document which admittedly has been translated grain metrically and noticing the context, The sentence used is in respect of "that I have made the waguzasht". The sentence comes immediately after the words "rent reserved" but before that is the statement "you hold from a longtime 50 bighas 16 kathas and 1 dhurs of dhanar, bhit, orchard etc. the rental payable for which is ho. 35 8-0. In respect of that I have made a waguzasht "It is admitted rent is paid and has been paid continuously, therefore, on any grammatical construction of those sentences, it is clear that the release or assessment could not have related to the rent but could have related merely to the lands. That in itself, in my judgment, is a sufficient indication that what the grantor was expressing was that some claim formally made to the lands by him was released by this sanad. If that be the correct" reason, and it seems to be so it is quite clear that the rent for these holdings could not be said to be fixed. I have expressed that view with some diffidence hut I have stated my, reasons for doing so. This decision leaves the matter open to the landlord in those circumstances to claim his enhancement. It is admitted by the respondents that the landlord is entitled to enhancement under Section 30(6) of the Bengal Tenancy Act. The District Judge in remanding the case on other points has decided that the enhancement under Section 30(6) should he at the rate of 3 annas 6 pies in the rupee which under this judgment the landlord would be entitled to claim.

(3.) The other appeals which we now admit and hear, were decided, as I have stated, in the Court below by the finding that the decision was a decision of fact, It is admitted again in this case that the landlord is entitled to enhancement under Section 30(6). The question which arises is whether he is also entitled to enhancement under Section 30(a). This matter can be dealt with quite shortly by reference to a statement made by the learned District Judge in the course of his judgment in which he remanded the case to the learned Munsiff. The learned Munsiff, in considering this matter in a somewhat elaborate judgment, came to the conclusion after considering the report of the Commissioner, that there was no prevailing rate. The learned Judge in remanding the case, had made this statement: The rates found by the Commissioner therefore for the entire village cannot be adopted for enhancing the rents of the defendants holdings under Section 30(b) of the Bengal Tenancy Act. Hut it also appears from the report of the Commissioner that some other blocks of the said two villages are comprised of lands which are similar to the land of the defendants holdings and the Commissioner should therefore have found out the prevailing rate at which rent was paid by the majority of tenants holdings lands in the said blocks.