ANUPAMA GHOSE Vs. PARBATI MISTERY

JUDGEMENT

(1.) The facts of the two suits which have resulted in these appeals are the following: One of these suits relates to a jama which used to be held by one Goloke, mistri, and the other to a jama which one Sridam Mandal held, under two persons named Chandramani Majhi and one Asanullah Gain who were temporary settlement holders from Government. The interests of Chandramani Majhi and Asanulla Gain have eventually passed to two persons, Charu Chandra Gbose and Purna Chandra Ghose. Goloke's rent was Rs. 29-1-4 and Sridam's Rs. 55-12-4. In 1920 B.S. Goloke and Sridam sold their respective jamas to Baroda Kanta Ghose, father of the aforesaid two persons Charu and Purna, when he was alive, and purported to execute kabuliyats in favour of Baroda at rentals of Rs. 38-2-5 and Rs. 70-15-0 respectively for the two jamas, and promising that if under any future settlement from Government there be any increment of the rent payable by the lessor they would pay the same by executing a fresh kabuliyat, and if there be a decrease they would get a corresponding diminution. By the will left by Baroda the two holdings have devolved on his two daughters-in-law, namely the wives of Charu and Purna. These two ladies are the plaintiffs in the present suits. Their present position is that their husbands are temporary settlement holders under the Government, that they themselves hold under their husbands and that the defendants are tenants under them.

(2.) In the Petty Settlement of 1908 the rents of the defendants in respect of the two jamas of Rs. 29-14-6 and Rs. 55-12-4, which were enhanced by the kabuliyats of 1290 B.S. to Rs. 38- 2-5 and Rs. 70-15-0 as already stated, were recorded as Rs. 34-7-2 and Rs. 63-15-3 respectively; and in the more recent District Settlement of 1925 they have been further enhanced to Rs. 40-2-0 and Rs. 69-1-0. The plaintiffs have sued for rents as recorded in these settlements plus a munafa of Rs. 8-2-9 for Goloke's jama and of Rs. 15-2-8 for Sridam's jama. Their case is that the enhancement of rent in the kabuliyats was on the basis of such munafas being reserved for Baroda and consequently for themselves, and that the stipulation in the kabuliyats, to which reference has already been made, makes that clear. In neither of the settlements the rights of Baroda or of the plaintiffs were recorded, but the defendants have been recorded as holding directly under the temporary settlement holders for the time- being. The defendants allege that the kabuliyats of 1290 B.S. were not acted upon and that rents were never paid according to their terms. They have not, however, challenged the kabalas in favour of Baroda. They say that they are liable to pay only such rents as are entered in the settlement khatians, and to such persons as are the temporary settlement holders.

(3.) The Munsif found that when Charu and Purna became temporary settlement holders under the purchase which they made from the previous temporary settlement holders, they managed the properties on behalf of their respective wives and that the collection papers produced by them showed that they separately realised the munafas payable to their wives under the terms of the kabuliyats aforesaid and kept separate accounts of such realizations. It was contended before the learned Munsif on behalf of the defence that as the plaintiffs did not institute any suit Under Section 104-H, Ben. Ten. Act, within time, they were incompetent to claim rent on the basis of anything else than what was entered in the Record-of-Rights. But he held that, as in the present cases the rights of the plaintiffs were not recorded in the khatian, they were competent to enforce them in the present suits by showing that the Record of Rights was wrong, even though they may not have instituted suits contemplated by that section. The Subordinate Judge agreed with the Munsif in holding that the intermediate interest created by the kabuliyat of 1290 B.S. did in fact exist and that under those kabuliyats the relationship of landlord and tenant must be held to exist between the plaintiffs and the defendants. He held however that the rents having been settled Under Section 104-J, Ben. Ten. Act, the entry in the Record-of-Rights is final and the plaintiffs cannot claim any higher amount. He held also that before the plaintiffs can claim munafa they must show what the rent payable by them to their own landlords was, but of this there was no evidence and that, in fact, there was no record made in respect of the plaintiffs tenancy under the temporary settlement holders. He gave the plaintiffs decrees at the rates entered in the settlement khatians and dismissed their claim as regards munafas.