RADHA NATH MAITY Vs. KRISHNA CHANDRA MUKHERJEE

JUDGEMENT

(1.) This is an appeal from a decision of the President of the Calcutta Improvement Tribunal dated 31 January 1935 and arises out of a dispute with regard to apportionment of the compensation money which has been awarded by reason of compulsory acquisition under the Calcutta Improvement Act of 1911. It appears that the land in question, which consists of about six bighas in area, was required for the purposes of a certain improvement scheme, and the value of the land, which is premises No. 25, Lake Road, was assessed at (including the statutory allowance) Rupees 1,12,700, and the value of the structures and trees in the premises in question with the statutory allowance was assessed at Rs. 1769-12-10. At the time of the declaration the tenant one Radhanath Maity who was claimant No. 2 before the Collector, was in poisession. The whole of the sum of Rupees 1,12,700 was awarded to the landlord claimants who are the respondents before us and the sum of Rs. 1,769-12-10 was given to Radhanath, the tenant. The tenant was dissatisfied with the award of the Collector and there was a reference both as regards valuation and apportionment. We are not now concerned with the question of the amount of compensation which has been awarded. The only dispute before us is with regard to the apportionment of the compensation awarded. The tenant claimed that he was occupancy raiyat on the land at the time of the acquisition and that therefore on the principle accepted by this Court he is entitled to half the compensation which has been awarded in favour of the landlord claimants..This position was not accepted by the learned President of the Tribunal who has confirmed the award of the Collector and has dismissed the reference made at the instance of Radhanath Maity, the appellant before us. Hence the present appeal by claimant No. 2.

(2.) In appeal before us Mr. Pugh who has appeared for claimant No. 2, has raised several contentions. He has contended in the first place that the land in question was agricultural land in the year 1906 when the kabuliat was executed in favour of the landlord by the present claimant, and that before the actual execution of the kabuliat, his case is, Radhanath or rather his predecessor-ininterest was for more than 12 years in occupation of this land and has acquired a right of occupancy to the same. Alternatively, the contention is that in any event Radhanath was before the execution of the lease in 1906 a non-occupancy raiyat on the land and that having regard to the provisions of Section 178, Ben. Ten. Act it was not permissible to the landlord to grant a lease or to take a kabuliat by which the rights of Radhanath Maity under the Bengal Tenancy Act could be jeopardized. His contention in substance is that by this document of 1906, to which reference will be made hereafter, it was not open to the respondents, the landlords, to defeat the rights of the appellant under the Bengal Tenancy Act and the document consequently being out of the way as Radhanath since the date of the lease in 1906 was in occupation of the land for more than 12 years he had acquired a right of occupancy in the land acquired and the apportionment of the compensation money should have been on that basis. The next argument is based on a clause in the kabuliat of 1914 which has been marked as Ex. B (see p. 63 of the second part of the paper-book), namely that in the case of the acquisition of the land by the Government or Municipality, the tenant would not be entitled to get any compensation in respect therefor. It is argued that in accordance with the terms of this kabuliat the tenant precluded himself from getting any portion of the compensation money in cases of acquisition being made only by the Government or by the Municipality, and as the acquisition was not made by the Government but by a board of trustees of the improvement of Calcutta this clause does not prevent the tenant, now appellant, from making a claim with regard to the compensation money. The first two contentions have been negatived by the learned President of the tribunal. With regard to the last contention, namely that the acquisition was not by the Government but by the board of trustees appointed under the Calcutta Improvement Act of 1911, it appears that no such ground was taken before the President of the tribunal nor is there any indication of such a ground in the memoranda of appeal before us. Mr. Pugh has however handed over to us the written argument which was supplied to the President by Mr. Shasmal, counsel for his client, which will show that this point was indicated in those notes which were presented to the learned President and which he afterwards returned to Mr. Pugh's client. The fourth point taken is with reference to the compensation which Mr. Pugh's client claims on account of the improvements which have been effected on the land since the taking of the kabuliat by Radhanath Maity. The learned President has noticed this point and has refused to give any compensation to the appellant on the ground that there is not even an iota of evidence to guide the Court in the assessment of such improvement of the land and also on the further ground that Radhanath himself had given up all rights with regard to the compensation for the land by Ex. B.

(3.) In order to understand the contentions raised on behalf of the appellant it would be necessary to state a few salient facts relating to the history of this land prior to 1906. It appears that a kabuliat was executed by one Uday who is the father-in-law of the appellant Radhanath in favour of the landlord on 1 Magh 1304 B.S. corresponding to 22nd January 1898. This lease was for a term of three years: see Ex. G printed at p. 26 of the second part of the paperbook. It will appear from an examination of this kabuliat that it was in respect of Bastu land. The lessee states this: I having applied to your Sarkar for being granted a settlement for the purpose of dwelling and residing as a temporary tenant at will, of one plot of about 6 B. 8 K. of land more or less, lying in holding No. 186, Division 6, Sub-Division Q, and within the boundaries given in schedule below out of the Lakheraj lands and Jamas which you have in Mouza. Panditia, Monoharpur village, appertaining to Dihi Panchannagram, within Pargana Khaspur, in District 24-Pargannas, Sub-District Alipore, under thana Tallygunge, you granted my prayers and settled Rs. 51 (fifty one rupees) as annual rent for the said 6 B. 8 K. of land and I give in writing this temporary kabuliat for the term of three years after accepting temporary patta to the effect that I shall pay the amount of rent into your Sarkar.