NANDA LAL Vs. ASKARAN BABOO

JUDGEMENT

(1.) The Maharaja of Burdwan held two villages Sundarpore and Char Bajramari in lakhiraj right. Before 1865 he settled 8 annas share of these villages in mukurari mourasi right with Bhairab Babu and the remaining 8 annas share with Amarchand Babu in the same right. Thus two mukurari mourasi tenures, each comprising an undivided 8 annas share in the lands of these two villages, were created. For the sake of convenience we will designate these two tenures as Mudafat Bhairab and Mudafat Amar Chand. The suc-cessors-in-interest of Bhairab Babu and Amar Chand Babu in their turn granted two dar-mukarari mourasi leases to Nobo Krishna Mukherjee by two separate pottas executed in the year 1865. The annual rent reserved by each potta was Rs. 2050. The pottas executed by Bhairab Babu's successors-in- interest is on the record (Ex. 1 (a) 1) but the other potta has not been produced. It is admitted by the parties that the two dar-mukarari mourasi pottas were on the same terms. The tenant agreed not to claim abatement of rent on account of diluvion and the landlord agreed not to claim increase of rent on account of accretion. In 1866 Nobokrishna Mukherjee instituted a suit against his landlords who were Bhairab Babu's successors for certain reliefs. That suit ended in a compromise on 2 June, 1867. The terms of compromise were embodied in a rajinamah (Ex. 2) executed by the tenant and a safinamah executed by the landlords (Ex. 2a). As a result of the compromise the annual rent was reduced from Rs. 2050 to Rs. 1700. There is, as in the original potta, an express stipulation that the rent would not be increased or reduced on account of alluvion and diluvion. The rent of the other darmukurari tenure which the successors-in-interest of Amar Chand Babu had granted, however, remained unchanged.

(2.) In 1897 Nimchand Babu, Hazari Mull Babu and Mohanlal Babu, who were descendants and successors-in-interest of Amar Chand Babu purchased one-half share of the tenure Mudafat Bhairab. They thus became owners of Mudafat Amar Chand and of one half share of Mudafat Bhairab. Thus they acquired an undivided twelve annas share in mukarari mourasi right in the lands of village Sundarpore and Char Bajramari. The defendants father, Gopal Chandra Banerjee, purchased on 2 April, 1899, both the dar mukurari tenures which belonged to Nobo Krishna Mukherjee. He accordingly became the tenant of Nimchand Babu, Hazari Mull Babu and Mohanlal Babu and some of the descendants of Bhairab Babu in respect of dar mukurari held under Mudafat Bhairab, and the tenant under Nim Chand Babu, Hazarimull Babu and Mohanlal Babu in respect of the other darmukarari tenure. Nim Chand Babu, Hazarimull Babu and Mohanlal Babu thus became entitled to realise from Gopal Chandra Banerjee the whole rent of the dar mukarari held under Mudafat Amar Chand (Rs. 2050) and half of the rent of the darmukarari tenure held under Mudafat Bhairab (Rs. 850). The total was Rs. 2900. There was thereafter a kharij in the year 1900 and on 24 August 1900, a kharij dakhili potta was granted by Nimchand Babu, Hazarimull Babu and Mohanlal Babu in his favour. Forthe 12 annas undivided share which Nimchand Babu, Hazarimull Babu and, Mohanlal Babu then had in the lands in the said two villages in mukurari mourasi right, Gopal Chandra Banerjee agreed to pay an annual rent of Rs. 2900. Exhibit 1 is the kharij dakhili potta. There is also a stipulation in this potta that there would be no increase or reduction of rent on account of alluvion or diluvion. Presumably the other owners of the mokarari mudafat Bhairab agreed to the kharij. From the time of this kharij dakhili potta there were thus two darmukurari tenures-one comprising an undivided four annas share of the lands of the said two villages held at an annual rent of Rs. 850 under some of the descendants of Bhairab Babu, and the other comprising an undivided twelve annas share in those lands held at an annual rent of Rs. 2900 under Nimchand Babu, Hazarimull Babu and Mohanlal Babu, the descendants of Amur Chand Babu. Those two darmukarari tenures have been described in schedules kha and ka of the plaint and for brevity's sake will be designated respectively as the 4 annas darmukarari and 12 annas darmukarari tenure. At a partition effected between the sons of Nimchand Babu, Hazarimull Babu and Mohanlal Babu the landlords interest of the 12 annas darmukarari tenure was allotted to the plaintiff's share, he being the son of Nimchand Babu. The plaintiff also acquired by purchase on 8 July 1931, the landlord's interest of the 4 annas darmukarari tenure. On 15 April 1940, he filed the suit in which this appeal arises. Therein he claimed arrears of rent and cesses for the years 1343 to 1346 B.S. in respect of the two darmukarari tenures described in Schedules. ka and kha at the rates of Rs. 2900 and Rs. 850 per year respectively together with interest at the rate of twelve per cent, per annum calculated on monthly kists in accordance with the stipulations in the darmukarari leases and the Kharij Dakhili potta of 1900.

(3.) The defendants stated in their written statement that a good portion of the two villages had been engulfed by the river Hooghly and were in the river bed in the years in suit. They accordingly pleaded that they were entitled to proportionate reduction of rent. To determine the extent of the diluvion they prayed for a local investigation. The learned Subordinate Judge has refused their prayer for local investigation, holding that on the terms of their engagement with the landlords they are not entitled to claim reduction of rent on account of diluvion. The second defence that was taken was that the plaintiffs could not claim interest at a higher rate than 6 1/2 per cent, calculated quarterly. The learned Subordinate Judge has given the plaintiffs interest at the rate of 12 per cent, per annum up to Sraban 1345 B.S. (=August 1938) and thereafter at the rate of 6 1/4 per cent, per annum. He has omitted to grant post- decretal interest. In this appeal which has been preferred by the receiver of the defendants properties he contends (1) that the defendants are entitled to claim reduction of rent on account of diluvion notwithstanding the stipulations in the pottas and (2) that the plaintiff cannot claim interest at more than 6 1/4 per cent, for the whole period and that the calculation of interest must be on the basis not of monthly kists, but interest has to be calculated on the arrears due at the end of each quarter of the year. Both these points have been argued before us with great ability by the advocates on both sides and we are indebted to them for the assistance they have given us. The first point has been urged by Mr. Gupta appearing for the appellants in the following manner: (1) that every tenant of agricultural land is entitled to proportionate reduction of rent on account of diluvion by reason of the provisions of Section 52, Ben. Ten. Act. He has a statutory right after the passing of the Bengal Tenancy Act which cannot be taken away from him by contract except only in those cases which fall within Section 179, Ben. Ten. Act; (2) that Section 179, Ben. Ten. Act, is not applicable to a permanent tenancy appertaining to a permanently settled estate where such tenancy had been created before the passing of the Bengal Tenancy Act; (3) that accordingly the defendants are entitled to get reduction of rent on account of diluvion, notwithstanding the contract between the landlord and tenant that there would be no reduction of rent on account of diluvion as both the tenures had been created before 1885 when the Bengal Tenancy Act was passed.