KUMUD NATH DAS SAHA Vs. KUNJABALA DASSYA

JUDGEMENT

(1.) The question raised by this appeal turns on the construction of the kabuliyat dated February 6, 1868. It appears that the plaintiff purchased a putni tenure on April 26, 1928, from Moharaj Bahadur Singh and his sons. The defendants held a darpatni under the original putnidars and that darputni is evidenced by a kabuliyat in favour of the original putnidar dated February 6, 1868. The rent payable by the darputnidars is mentioned as a sum of Rs. 4,761. The present suit was instituted by the purchasers of the putni for determination of fair and equitable rent in respect of the darpuini tenure under the provisions of Section 7 of the Bengal Tenancy Act. The defence of the defendants to the suit is that the tenure which he holds under the putnidar is a mokrari tenure and its rent is not liable to enhancement. The question, as has already been stated, turns on the construction of the darputni pottah or kabuliyat. The Subordinate Judge has accepted the contention of the defence and holds that on a true reading of the kabuliyat it appears that the tenure is a mokrari tenure and its rent is not liable to enhancement. It appears also that in the Record of Rights which was finally published some time in 1925, darputni tenure is described as a mokrari tenure. The question before us on appeal is whether the decision of the Subordinate Judge is right. The material portions of the durputni kabuliyat are to be found printed at pp. 9-11 of the second part of the paper book. We just refer to some of the recitals in this document. The document begins thus; This patta of darputni taluk is granted to the following effect: "The other material portion of the document is as follows: "Therefore bringing in possession all the lands cultivated, patit, garden, falkar, malkar, bankar, etc. situated within the four boundaries of the said lot with all rights and appurtenances, you down to your heirs, etc., in succession will continue to enjoy and possess the same in darputni right taking dakhilas on paying. to me or to my authorised officer the stipulated rent of Rs. 4,761, (Rupees Four thousand seven hundred and sixty one) year by year in instalments specified below without raising any plea whatsoever for reduction of rent on the grounds of inundation, drought, covering by sand, cyclone and washing away by river and pool and, without by yourself, or through another, killing fish or any other animal or realising any rent in respect of that.

(2.) The Bengali words for the words translated as stipulated rent" are abadharita jama ( . . . ). The word abadharita ( . . ) has a significance of the fixity of rental. The words abadharita jama ( . . . ) mean fixed rent; and having regard to the fact that the document starts with describing the patta as a darputni taluk and having regard to the further clause in the lease that the lessee was to enjoy in succession and enjoy the same in darpuini rights we have no doubt that fixity of rental was intended by the terms of this lease. This was a document which was executed in 1868. The words putni and darputni have acquired a certain technical meaning having regard to the fact that the Putni Regulation was enacted so far back from that date as in the year 1819, and it is necessary to refer to the preamble to the Regulation which describes the character of the putni and darputni tenures which were existing prior to the Regulation. After staling that by the tenures also of the engagements interchanged (so far as putni and darputni are concerned) it is amongst other stipulations provided that in case of an arrear occurring the tenure may be brought to sale by the zemindar and if the sale does not yield a sufficient amount to make good the balance of rent at the time due, the remaining property of the defaulter shall be further answerable for the demand, the preamble proceeds as follows: These tenures have usually been denominated putni taluks, and it has been a common practice of the holders of them to under-let on precisely similar terms to other persons, who on taking such leases, went by the name of darputni talukdars.

(3.) The incidents of the darputni appear from the recitals described above. The zemindar is to bring about the sale in case of arrears of rents which are rents fixed in perpetuity and the tenure is enjoyed from generation to generation. The word darputni, therefore, appears to us to have acquired the meaning of permanent tenure with fixity of rent; and in addition we have in the document in question the words . . . , (abadharita jama) which have no other meaning than fixed rent. The interpretation put upon the document by the Court below is right. Mr. Roy Choudhury appearing for the appellants has relied in support of his contention, that on a true reading of the document no mokrari tenure was intended to be created by the said document, on a decision of their Lordships of the Judicial Committee in the case of Krishnendra Nath Sarkar V/s. Kusum Kamini Devi . An examination of that case, however, will show that the terms of the document which their Lordships were construing in that case are very different from the terms of the document now before us. The proposition of law with reference to the construction of the document which created the relationship of landlord and tenant in that case, was thus formulated by their Lordships in that case. At p. 51 Page of 54 I A.--[Ed.] of the report their Lordships say this: It appears to be common ground that prime- facie that rent is liable to enhancement on the application of the landlord or to reduction on the application of the tenant, unless either of them has precluded himself by contract from claiming such enhancement or reduction respectively.