SRISH CHANDRA NANDI Vs. MIDNAPORE ZAMINDARY CO LTD

JUDGEMENT

(1.) These two appeals arise out of two rent suits, namely Nos. 39 and 2475 of 1934. Both of them have been dismissed by the Courts below, and the plaintiff has accordingly preferred these two appeals. The first suit was filed by Maharaja Srish Chandra Nandi as shebait of Thakur Sree Sree Lakshmi Narayan Deb and the second in his personal capacity. The idol is the proprietor of touzi No. 560 of the Murshidabad Collectorate. Under the idol, Robert Watson & Co. held a gar mokarari tenure of an area of 1321 bighas of land at an annual rent of Rs. 551. The interest of Robert Watson & Co. has devolved upon the defendants-respondents. The said tenure was converted into a mokarari one in the year 1319 B. S.; selami was paid and the rent was fixed at Rupees 641.3.0 in perpetuity. On 11 April 1913 the late Maharaja Manindra Chandra Nandi, the father of Maharaja Srish Chandra, who was then the shebait executed the mokarari potta in favour of the defendants-respondents and the latter executed the corresponding kabuliat. In these documents it is recited that 951 bighas 16 cottas odd of the demised area was then in the river bed, and a covenant was made that if the tenant was unable to possess the said area or any part of it on re-formation owing to the defect of title of the landlord, the landlord would either give to the tenant an equal quantity of land from other parts of his estate, or allow proportionate abatement of rent.

(2.) Shortly after the execution of the potta and kabuliat, the submerged lands appeared above water and became fit for cultivation. Diara proceedings were started by the Government as also proceedings under" Part II of Ch. 10, Ben. Ten. Act. These proceedings were completed in the year 1916. The southernmost part comprising an area of about 573 bighas was found by the revenue officers to be the lands of touzi No. 560, and the middle portion comprising an area of about 366 bighas was found to be part of the old river bed. This portion with other accretions was formed into a separate estate, No. 2504, and as it was alluvial accretion to the lands of touzi No. 560, a temporary settlement was offered to the proprietor of the latter estate, e. g. the idol represented by Maharaja Manindra Chandra Nandi. The latter accepted the offer, and though the settlement ought to have been made with him as shebait, the actual settlement for a term of five years and at a revenue of Rs. 125 was made with him in his personal capacity with effect from April 1921. It is for this that the second rent suit has been brought by Maharaja Srish Chandra in his personal capacity as heir of his father, but it was conceded by the plaintiff in the lower Courts that the temporary settlement of estate No. 2504 was really taken by the late Maharaja in his capacity as shebait and the second rent suit ought therefore to be treated as having been brought by Maharaja Srish Chandra in his capacity of shebait. In the proceedings under Part II of Ch. 10, Ben. Ten. Act, the defendants- respondents, were recorded in the Record of Eights to be in possession of the aforesaid area of 366 odd bighas as tenants, and the fair rent payable by the said defendants-respondents was settled under Section 104, Ben. Ten. Act, at Rs. 151-5-0. The remaining portion of the newly formed land about 380 bighas in area, the northernmost portion, was found to be re- formations in situ of the lands of a khas mahal called Jhowbona belonging to Government and the Government took possession thereof as part of its khas mahal estate.

(3.) The net result of these proceedings was that out of the 951 bighas of land which was under water at the date of the mokarari potta, only about 573 bighas were found to appertain to touzi No. 560, and the defendants got possession thereof and are in peaceful possession. An area of 366 bighas odd was found to be outside touzi No. 560, but as the proprietor of touzi No. 560 got temporary settlement thereof from the Government, the defendants also got possession of the same and are in peaceful possession. But they could not get possession of the remaining area of about 380 bighas which was found to be part of Jhowbona and that by reason of the defect of title of the grantor of the mokarari potta. The defendants thereupon demanded of Maharaja Manindra Chandra Nandi the fulfilment of his covenant. He was asked either to give land in lieu of the said 380 bighas out of other portions of his estate or to give proportionate abatement of rent. After some correspondence Maharaja Manindra Chandra Nandi agreed in 1924 to give a proportionate abatement of rent amounting to Rs. 184-15-0 on the said area of 380 bighas odd land. The rent for the areas in possession of the defendants after the said abatement became accordingly Rs. 456-4-0. Rent at that rate was paid and accepted from 1331 to 1339 B. S., and in the dakhilas granted to the defendants the said rent is shown as due in respect of one tenancy consisting of lands of both touzis Nos. 560 and 2504. The first revenue settlement of estate No. 2504 expired in March 1926 and thereafter up to March 1928 yearly settlements were made by the Government with Maharaja Nandi at the same revenue of Rs. 125. In 1928-1929 the condition of the property having improved, revenue was assessed at Rs. 1038-13-0 and summary settlements were made with him till March 1933, the revenue payable being the said sum of Rs. 1038-13-0. In 1927-1928, the Government thought of a survey and settlement afresh under Part II, Chap. 10, Ben. Ten. Act, and a revenue settlement for a term of years, In the proceedings under Section 104, Ben. Ten. Act, the rent payable by the defendants in respect of the area within touzi No. 2502 in their possession was assessed at Rs. 285-4-0 in place of the former figure, Rs. 151-5-0. The Record of Eights was made final in 1932, and the Maharaja then engaged with the Government for a term of ten years agreeing to pay an annual revenue of Rs. 1085. In the first of the aforesaid rent suits, the plaintiff claimed at the rate of Rs. 641-3-0 and cess at the rate of Rs.25-8-3 per year. The total sum payable is shown in the plaint thus: