TOFAZZAL AHMED CHOWDHURY Vs. MASALAT KHAN CHAUDHURY

JUDGEMENT

(1.) In this case a Rule was issued calling upon the opposite party to show cause why the order of the Munsif, North Raozan, complained of in the petition should not be set aside or why such other or further order should not be made as to this Court may seem fit and proper. The petitioner's case is that Ram Sundar De and others held certain lands under the petitioners and their co-sharers and that the said tenants sold their holding to the opposite party describing the same as a mokarari holding and served a notice on the petitioners with landlord's fee of Re. 1 only and the petitioners made an application under Section 26-J, Ben. Ten. Act, claiming that the holding was a raiyati holding and that they were entitled to transfer fee and compensation under Section 26(J). The Munsif on hearing the evidence of the parties came to the conclusion that the holding was mukarari, held at a fixed rent and rejected the petitioners application.

(2.) In this Court it has been urged by the learned Advocate on behalf of the petitioners that the solenama Ex. A upon which the Munsif has based his judgment does not really mean that the rent was fixed for ever and secondly that the solenama is of no effect inasmuch as it was not registered under the provisions of the Registration Act. The solenama in question was dated 30 June 1868. It appears that the landlords instituted a suit for assessment of rent under the Act of 1859 against the tenants and this document represents the compromise of that suit. Stating the claim made by the plaintiff both parties agreed on the compromise that the defendants would hold the land at a money rent of Rs. 9-8-0 and paddy rent of 40 aries of paddy per annum and that this rent will not be altered on any account. It is urged by Mr. Das that inasmuch as the rent consisted of money plus paddy it cannot be considered to be rent fixed in perpetuity. In support of his proposition he has quoted the case of Baneswar Mukherjee V/s. Umesh Chandra, (1910) 37 Cal 626. In that case it was held that where the terms of a document show that the rent is to be partly in money and partly in kind the rent cannot be regarded fixed in amount, but that the landlord is entitled to get the price of the paddy at the date of the suit. It is urged on the other side that the decision of the case of Baneswar Mukherjee V/s. Umesh Chandra, (1910) 37 Cal 626 was dissented from in four subseqent cases in 1916, 1917 and 1919, namely in the case of Nilmadhab Mahapatra v. Keshablal Mahapatra, 1917 Cal 827 ; Basiruddin Chaudhury V/s. Afsarunnessa Bibi, 1917 Cal 26 ; Gurudas Sen V/s. Govinda Chandra, 1920 Cal 875 and Ashutosh Mukerjee V/s. Haran Chandra,1920 Cal 614. But the case on which the respondent lay the greatest stress is that of 1923 Dina Nath Pal V/s. Sati Prosad Garga, 1923 Cal 74.

(3.) In that case it was held that the presumption Under Section 50 is applicable to a tenure holder or a raiyat holding at a rent partly in cash or partly in kind or entirely in kind. In the case of 1923 Dina Nath Pal V/s. Sati Prosad Garga, 1923 Cal 74 the former case was referred to but inasmuch as no grounds were stated for the former judgment it was dissented from on the ground that the word "rent" Under Section 3(5) now 3(13), Ben. Ten. Act, means whatever is lawfully payable in money or kind by a tenant to the landlord on account of the use and occupation of the land held by the tenants. Rent therefore may consist entirely of money or entirely of produce of some kind or partly of money or partly of produce. The term "rent" is not equivalent to money rent. Section 50 provides the condition under which it is to be held that the rent payable by a tenant is fixed in perpetuity. There also the term used is rent and not money rent. I am of opinion that the decision of Dina Nath Pal V/s. Sati Prosad Garga, 1923 Cal 74 is the decision which this Court ought to follow. In this case the rent was fixed in perpetuity at the sum of Rs. 9-8-0, in cash and 40 arise of paddy. Under Section 18 the rent being fixed in perpetuity the transfer fee would be Re. 1 only.