PROVINCE OF BENGAL Vs. MIDNAPORE ZAMINDARI CO LTD

JUDGEMENT

(1.) This appeal is on behalf of the Province of Bengal and is directed against a decree of the Subordinate Judge of Nadia, dated 31 July 1940, made in a suit commenced by the plaintiff- respondent under Section 104H, Bengal Tenancy Act. The facts lie within a short compass and may be stated as follows: There is a temporarily settled estate known as Sarkarpara- Naluapara bearing Touzi No. 893 of the Nadia Collectorate. The lands comprised in this estate were once a part of Bhabananda Deara and were resumed under Regn. 2 of 1819 some time in 1828. After resumption, a separate estate was formed which is being held in temporary settlement from time to time, the first settlement being made in the year 1842. At that time, the proprietor of this estate was Raja Ram Chandra Roy of Nashipur, and as the Raja refused to take settlement the estate was settled with Robert Watson & Co., the predecessor-in- interest of the present plaintiff. In 1852, the proprietary right to the estate became vested in J.W. Laidley and James Darlymple, two of the partners of the firm of Robert Watson & Co., and by an indenture of lease, dated 5 November 1866, these two persons leased out in permanent putni right their proprietary right in Touzi N0.893 as well as in the permanently settled lands of Taraf Nakra of Pargana Goas appertaining to eight annas share of Touzi No. 523 of the Murshidabad Collectorate, to Robert Watson & Co., at a fixed consolidated rental of Rs. 5483-5-1 a year. There was a clause in the putni patta by which the lessors purported to convey to the lessee their rights to have periodical settlement of the temporarily settled estate as proprietors. On the basis of this clause, it appears, proprietary settlements of Touzi No. 893 were made with Robert Watson & Co. and then with their successor-in-interest, the present plaintiff, from time to time, and this state of things continued till 1920.

(2.) In 1920, a fresh revenue settlement was made which came into operation with effect from 1 April 1921, and during these settlement operations it was detected that the Midnapur Zamindari Co., was merely a tenure-holder and not a proprietor of Touzi NO. 893, and the clause in the patta on the strength of which proprietary settlements were made with them was in no sense binding on the Government. The result was that in the settlement records of 1920, which recorded the rents of all classes of tenants, Raja Bijoy Singh Dudhuria and others, who are represented by defendants 2 to 5 in this suit, were recorded as proprietors of the said touzi and the Midnapur Zamindari Co. was described as a tenure-holder under them. The proprietors however refused to take settlement of Touzi No. 893 which was kept under the direct management of the Government for some time and then a farming settlement was concluded with the Midnapur Zamindari Co. which lasted till 1936. In 1923 the plaintiff Company filed a suit for establishment of their proprietary right to Touzi No. 893. That suit was dismissed by the trial Court and also by the High Court on appeal. An appeal was then taken by the company to the Privy Council, but that appeal was eventually withdrawn. In 1937 fresh survey and settlement proceedings began under Part II, Chap. 10, Ben. Ten. Act, and the Settlement Officer assessed a rent of Rs. 13,379-10-0 under Section 104, Ben. Ten. Act, in respect of the putni held by the plaintiff company under Touzi No. 893. Being aggrieved by this assessment, the plaintiff company took an appeal to the Director of Land Records and contended inter alia that the putni, being created not only in respect of the lands of Touzi NO. 893 but of the permanently settled lands of Touzi No. 523 as well, at a fixed consolidated rent, the rent fixed by the contract was binding both on the zamindars and the revenue officer and the latter had no jurisdiction to settle the rent of the putni ignoring the said contract. The appeal was dismissed by the Director of Land Records on 15 July 1938. Eventually, the Dudhuria zamindars did not accept the new periodical settlement this time either, and the Government took over khas management of the touzi under its powers under Regn. 7 of 1822. The plaintiff filed the present suit on 11 January 1939, making the Province of Bengal and the Dudhuria zamindars parties defendants and praying for declaration that the rent-roll made by the revenue officer in contravention of the contract embodied in the putni lease which was prior to the Bengal Tenancy Act, was unauthorized, illegal and ultra vires and that the plaintiff company was not liable to pay as putnidar the assessed rent of Rs. 13,379-10-0 a year.

(3.) The suit was contested primarily by the Province of Bengal. The Dudhuria defendants filed a written statement supporting the Province of Bengal but did not take any active part in the proceeding. On behalf of the Province of Bengal a large number of defences were taken. It was contended inter alia that the lands of Touzi No. 893 were not covered by the putni patta of 1866, that the proprietor of a temporarily settled estate was not competent to create a perpetual tenure, and that as in previous settlement proceedings rents of all classes of tenants were enhanced and the plaintiff company who took settlement did not challenge the legality of the proceedings, it was not competent to raise any objection now. It was also averred that the contract, if any, fixing in perpetuity the rent of the lands of temporarily settled estate No. 893 was not binding on the revenue officer or on the Province of Bengal, that the suit was barred by res judicata and also under Section 104H Clause 3, Ben. Ten. Act, and that the notice under Section 80, Civil P. C., not being a proper or legal notice, the suit was premature and bound to be dismissed on that ground alone. The trial Judge who heard the suit overruled these defences and held inter alia that as the putni lease created by the proprietors in favour of the plaintiff company was anterior to the passing of the Bengal Tenancy Act and the contract was subsisting at the date of the settlement, the settlement authorities had no jurisdiction in view of Section 191, Ben. Ten. Act, to ignore the terms of the lease and fix rents in violation of the same. Thus the putni rent that was assessed under Section 104, Ben. Ten. Act, was illegal and without jurisdiction and was not binding on the plaintiff. The result was that the plaintiff's suit was decreed. It is against this judgment that the Province of Bengal has come up on appeal to this Court.