PARASNATH VERMA Vs. FAUZDAR MAHTON

JUDGEMENT

(1.) In this appeal by the plaintiffs which arises out of a suit for recovery of bhaoli rental an interesting question for decision arises, namely, whether the landlord is entitled to claim the price of bhusa and newari apart from the price of paddy and other crops to which he has been held to be entitled. The trial Court on a consideration of the entire evidence in the case came to the conclusion that in the years in suit, the rent claimed lands produced paddy at the rate of nine maunda a bigha, khesari at the rate of three maunds a bigha and gram at the rate of 2 maunds a bigha--all these are in hutcha weights, that is to say, nine paseris kutcha was taken as equivalent to one maund pucca. The sale rate was directed to be calculated according to the Gazette rate, but in case the Gazette was silent, the rate given in the plaint was to prevail. The landlord was allowed 9/20ths share out of this.

(2.) The learned Munsif disallowed the claim of bhusa and newari on the ground that no custom to that effect has been proved by the plaintiff and further that the law did not give any help to the appellant either. Reference was made to Section 178B, Tenancy Act, before the learned Munsif, but he overruled the argument on the ground that in that section there was no mention that the tenants were to divide the bhusa and newari also. Accordingly the claim for bhusa and newari was disallowed. In appeal by the landlords the learned Additional Subordinate Judge characterised the claim as of a novel nature and observed that the pleader who appeared on behalf of the tenants stated that during the whole of his forty years practice at the bar he had not come across a claim of this nature in bhaoli suits and then proceeded to observe: In bhaoli suits, claim is made in respect of actual produce only and it is not the practice to claim a share of the Bhusa and Newari also. The learned pleader for the appellants contends that Bhusa and Newariaie also included in the word produce and the landlord should be given a decree for his 9/20ths share out of Bhusa and Newaii also. I do not think that the word produce includes Bhusa and Newari also, but I must confess that the point raised on behalf of the appellants is not free from doubt.

(3.) The learned Judge, however, thought that in the present case the matter was concluded by the record of rights which indicated that the landlord was entitled to get a share out of the galla, that is to say, out of the grains, and, therefore, it is clear that the landlord is entitled to get a share out of the actual grains which are produced on the lands. In the khatian the word Bhaoli danabandi also finds place which also indicates that only the Dana (grains) were to be divided.