BHAIRON PRASAD Vs. MAHANT SOMVARPURI

JUDGEMENT

(1.) THE facts connected with this appeal may be very shortly stated. THE defendants having sold their proprietary rights became ex-proprietary tenants of the sir lands under the provisions of Section 10 of the Tenancy Act. An application was made to the Collector to fix the rent on the ex-proprietary holding under the provisions of Section 36 of the Land Revenue Act. THE rent was fixed at the sum of Rs. 50. Subsequently, by a registered agreement between the plaintiffs and the defendants, the rent was enhanced to the sum of Rs. 72-6-0. THE plaintiff brought a suit in the Revenue Court to recover this rent. THE defendants, amongst other pleas, raised the defence that no rent save the rent fixed by the Collector could be recovered until after the expiration of 10 years from the time of the creation of the ex-proprietary tenancy. THE Revenue Court held that the plaintiff was entitled to recover the enhanced rent. An appeal was taken to the District Judge who confirmed the decree of the Court of first instance. THE learned District Judge found that the agreement was entered into because the plaintiff was about to take steps to get rid of the order of the Collector by an application in revision or by an application for enhancement. We merely mention these matters to show that there was no fraud on the part of the plaintiff. A second appeal was preferred to this Court and the learned Judge, who heard the appeal, affirmed the decree of the Courts below. THE present appeal is under the letters patent against the decree of the learned Judge of this Court.

(2.) THE question argued before the District Judge was the short question whether or not a tenant of an ex-proprietary holding could enter into a valid agreement to pay enhanced rent, it being admitted that the agreement was carried out by means of a registered instrument but before the expiration of the period of 10 years from the creation of the ex-proprietary tenancy. We wish particularly to point out that there was no suggestion that the enhanced rent was greater than the favourable beneficial rent at which ex-proprietary tenants are entitled to hold under the provisions of Section 10 of the Tenancy Act. At the hearing before the learned Judge of this Court the discussion seems to have been somewhat wider than in the Court of the District Judge and there are certain remarks of the learned Judge of this Court as to the power of ex-proprietary tenants to contract themselves out of the provision of the Tenancy Act. We do not think that these questions arise in the present case and we do not wish to-be taken as expressing our concurrence with some of the remarks which fell from the learned Judge of this Court on that subject. THE only question which we think properly arises in the present case is the question whether the registered agreement executed by the defendants to pay its. 72-6-0 as rent for the holding in lieu of Rs. 50 fixed by the Collector is or is not a valid agreement and one to which effect can be given. Section 36 of the Land Revenue Act provides that "when a right of occupancy has been created under the provisions of Section 10 of the North Western Provinces Tenancy Act of 1901...in favour of an ex-proprietary tenaut, the Collector shall ...pass an order specifying the land in which such occupancy right has been created, and fixing the rent payable therefor." Sub-Section (2) is as follows: "THE rent, so fixed shall be payable from the date the ex-proprietary tenancy arose subject to the law of limitation as to arrears of rent, and save as provided by Section, 41 of the North. Western Provinces Tenancy Act of 1901 or Section 35B of the Oudh Rent Act of 1886 shall not be liable to enhancement or abatement for a period of 10 years, except by order of a Settlement Officer under Section 87 of this Act." THE clause that we have just quoted seems by necessary implication to mean that the rent fixed by the Collector can be enhanced or abated in the manner provided by Section 41 of the Tenancy Act notwithstanding that the period of 10 years has not elapsed. Section 41 of the Tenancy Act is as follows: THE rent of an ex-proprietary or occupancy tenant shall be liable to enhancement or abatement only (a) by registered agreement, or (b) by decree or order of a Revenue Court." THE Section goes on to provide that when so enhanced or abated, the rent shall not be again liable to enhancement or abatement until or unless as provided in the following clauses of the Act." It will be seen that Section 41, so far as we have quoted it, applies not to the fixing" of a rent for the first time but to the enhancement" or "abatement" of a rent which has already been fixed". We now come to the part of the Section which creates the difficulty. Sub-Section 3 is as follows:-"THE term for which the rent of an ex-proprietary or occupancy tenant is fixed by decree or order of a Revenue Court shall not be less than 10 years, but no term in excess of 10 years shall be so fixed except upon agreement by the parties." It is at once to be remarked that sub-Section 3 does not seem to properly belong to Section 41. It is one more example of unskilful drafting in this Act. THE earlier part of the Section as we have already remarked deals with the enhancement or abatement of the rent. Sub-Section 3 refers to the fixing of the rent by a decree or order of the Revenue Court and not (expressly at least) to the enhancement of it. THE contention on behalf of the appellant is that the only meaning which can be given to sub-Section 3 is that the rent fixed by the Collector must be the rent for the period of 10 years at least, from the time when the ex- proprietary tenancy was created and that no enhancement or abatement can be made during that period of 10 years. It is contended that unless this meaning be attributed to the sub-section the words are quite superfluous. Reference is made to Sections 35 (a) and 35 (6) of the Oudh Rent Act as showing what the intention of the Legislature was. It is pointed out that there was no special reason why in this respect the Legislature should have intended that there should be any difference in the law in Agra and the law in Oudh and it is said that the provision in the Oudh Rent Act shows clearly that the rent in Oudh could not be abated or enhanced during the period of 10 years. It is no doubt difficult to reconcile the provisions of sub-Section 3 of Section 41 of the Agra Tenancy Act, with the earlier part of the Section. But the mere fact that we are unable to reconcile (except by speculation) the provisions of the two sub-sections is not itself sufficient reason why we should hold that the registered agreement executed by the defendants in the manner provided by the first sub-section of Section 41 and also in accordance with Section 36, sub- Section 2, of the Land Revenue Act is invalid. We think that the Court should interpret the Section in favour of the legality of the registered agreement rather than in favour of its illegality. We think that the view taken by the learned District Judge was correct and that the learned Judge of this Court properly upheld his decree. We accordingly dismiss the appeal with costs.