DWARKA PRASAD Vs. PARMESHWARI RAI

JUDGEMENT

(1.) THIS second appeal arises out of a suit for arrears of rent. The plaintiffs gave a village in usufructuary mortgage with a stipulation that the mortgagees should have no power to make settlement for a period exceeding the term of the mortgage. The mortgagees made raiyati settlement of 129 bighas of land with the defendants who are a large family of cultivators at an annual rent of Rs. 670. The mortgagors after the raiyats had been in occupation for two years redeemed a four annas share in the village, whereupon they attempted to eject the raiyats from one-fourth of their holding. The raiyats then entered into an agreement to pay for their one-fourth share the annual rent of Rs. 433, and it is for rent at this rate that the suit was instituted. The learned Subordinate Judge found that the defendants who were settled raiyats of the village had acquired occupancy right by the operation of Section 21, Ben. Ten. Act, when settlement was made with them, so that the subsequent agreement with the landlords of the four annas share which had the effect of enhancing their rent from Rs. 670 to Rs. 985 was void by virtue of the provisions of Section 29 of the Act. The plaintiffs come in second appeal from that decision.

(2.) MR. Manohar Lal on behalf of the appellants suggests that as the mortgagees had no power to make settlement for a term exceeding the term of the mortgage, they had no power to confer occupancy rights on the raiyat defendants; but it appears to be clear that on this point the view taken by the learned Subordinate Judge was correct. There is no suggestion that the settlement was not made in good faith, or that it was collusive, and when the mortgagees in possession, who were then de facto landlords of the village, gave this tenancy to settled raiyats of the village, the raiyats acquired occupancy rights by operation of law: and it would not have been possible for the mortgagees to prevent the accrual of these rights by any contract between themselves and the raiyats. No contract between co- proprietors or between mortgagor and mortgagee can empower the mortgagee to avoid the provisions of Section 178, Ben. Ten. Act, so that if the contract has specifically provided that the raiyats should not acquire occupancy rights, it could not have been enforced. MR. Manohar Lal suggests that Section 29 should be regarded as having no application in this case, because the higher rent was offered and accepted in settlement of a bona fide dispute as to the legal position of the defendants, citing the decision in Askaran Baid V/s. Deolal Singh AIR 1929 Pat 668, but in that case the mortgagor had made a raiyati settlement with his own nephew in anticipation of a mortgage decree and the settlement bore on its face the appearance of a collusive settlement at a low rate of rent. The nephew faced with an action in ejectment from the purchaser of the mortgaged property, agreed to a considerable enhancement of rent, and it was held that the provisions of Section 29 would not apply to render such an agreement illegal. In that case there was a real dispute as to status; and there was ground for doubt whether the basic rent on which the enhancement would be calculated was the real rent of the holding or whether the whole settlement had not been a mere colourable transaction. In the present case it does not appear that any questions of this kind arise. The raiyats appear to have obtained bona fide settlement at a reasonable rate of rent. They acquired occupancy right by operation of law and their rent could not be enhanced by contract by an amount exceeding that permitted by Section 29, Ben. Ten. Act. The decree of the learned Subordinate Judge must therefore be confirmed and the appeal is dismissed with costs.