BAHADUR SINGH SINGHEE Vs. BHUPAL CHANDRA ROY CHOUDHURY

JUDGEMENT

(1.) This rule was issued on the opposite party to show cause why an order made by the Subordinate Judge of Maldah allowing the landlord, the present opposite party, the amount of Rs. 2590 odd claimed by him as the balance of transfer fees under Section 26-J, Bengal Tenancy Act, should not be set aside. The material facts are as follows: The landlord, opposite party in this rule, is the proprietor of a certain Mehal in the Maldah Collectorate. Under that Mehal are four tenancies which had been settled at the time when the land-lord's estate was under the management of the Court of Wards with the predecessor-in-interest of the Mathurapur Zamindary Co. Ltd. The pottas relating to these tenancies described them as jotes. During the Deara Settlement in 1919 they were described as permanent tenures liable to enhancement of rent. In 1928 the landlord brought suits for enhancement of rent and the decision in those suits finally was that the tenancies were raiyati holdings and not tenures. During the pendency of the litigation the Zamindary Company transferred the tenancies to the petitioner in this rule and the landlord's fee was calculated under Section 12, Bengal Tenancy Act, at two per cent. of the annual jama. After the subsequent decision that the tenancies were raiyati holdings, the opposite party here filed an application claiming Rs. 2590 odd as balance of the transfer-fees due to him and calculated five times the annual jama of the holdings. His allegation was that the tenancies were ordinary occupancy holdings and the defence to his claim was that the holdings were not ordinary occupancy holdings but mokarari holdings, a question incidentally which was left open in the previous litigation. The learned Subordinate Judge in deciding this question observed: It is agreed on all hands that the answer (to the question whether the tenancies are ordinary occupancy holdings or mokarari holdings) will depend upon the true construction of the terms of the written leases of 1885.

(2.) On examination of the terms of those pottas and on consideration of certain other matters he came to the conclusion that the tenancies were ordinary occupancy holdings and on that footing held that the landlord petitioner was entitled to the amount he claimed. Against that decision the present rule has been obtained. We are of opinion that the rule should be discharged for two reasons. In the first place, the application purports to be one under Section 115, Civil P.C. Now the powers of interference conferred by that Section can be exercised when the Subordinate Court in question appears to have exercised a jurisdiction not vested in it by law, or failed to exercise a jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material irregularity. Now it cannot be contended here that the Sub-ordinate Judge exercised a jurisdiction not vested in him by law or failed to exercise a jurisdiction so vested, nor can we think, as he said, that he acted illegally or with material irregularity in deciding the question before him on the materials before him in the manner indicated in his judgement. The first difficulty then in the way of the petitioner is that there is no legal ground for interference under Section 115, Civil Procedure Code.

(3.) On the merits of the application we think that the view taken by the learned Judge in the Court below as to the true construction of the documents is the correct view. We have also considered the terms of these documents and for reasons which are stated at length by my learned brother, with which I entirely agree, we hold that the construction placed on the pottas by the Court below cannot be challenged, In this view of the matter the rule fails and is discharged with costs; hearing fee one gold mohur. Nasim Ali, J.