ANNADA PROSANNA CHATTERJEE Vs. RAM SARAN KOWER

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff, who is the purchaser of a patni tenure at a sale held under Regn. 8 of 1819, and arises out of a suit commenced by him for recovery of arrears of rent for the period 1338 to Ashar Kist of 1341 B.S. at the rate of Rs. 10 a year, in respect of a tenancy held by defendant 2 as an occupancy raiyat within the said patni. Defendant 1 has been impleaded on the ground that defendant 2 transferred to him the holding by a kobala dated 17 Baishak 1341 B.S.; there was a further claim for enhancement of rent under the provision of Section 30(b), Ben. Ten. Act. The defendants, besides raising a plea of payment so far as the rent due was concerned, contended in substance that the holding was a mokrari one, and the rent being fixed in perpetuity was not enhancible under Section 30(b), Ben. Ten. Act. The Court below disbelieved the story of payment but gave effect to the contention of the defendants that the tenancy was held at a fixed rent. The claim for arrears of rent was thus decreed in full, defendant 2 being made liable for the Ashar Kist of 1341 B.S. which fell due after his purchase, but the claim for enhancement of rent under Section 30(b), Ben. Ten. Act, was dismissed. It is against this part of the decree that the present second appeal has been preferred.

(2.) It is not disputed that defendant 2 got a putta from the previous patnidar on 31 January 1907 by which the rent of this holding was fixed in perpetuity. The controversy really centres round the point as to whether the putta is binding on the present plaintiff who has purchased the patni taluk free from all incumbrances under Section 11 of the Patni Regulation The Courts below have held against the plaintiff on the ground that defendant 2 was a khudkhast raiyat and the engagement relating to fixity of rent would come within the purview of the exception contained in Clause (iii) of Section 11 of Regn. 8 of 1819. The plaintiff therefore according to the Courts below is not competent to ignore the putta. Mr. Chakravorty who has appeared in support of the appeal has assailed the propriety of this view substantially on two grounds. He has contended in the first place that the grant of a mokrari right in an incumbrance within the meaning of S.11 of the Patni Regulation and the plaintiff has acquired the patni free from that encumbrance. The second contention is that the defendants do not come within the exception provided for in C1. (iii) of Section 11 of the Patni Regulation This contention is sought to be supported on three grounds: firstly that defendant 2 was never a khudkhast raiyat, and the assumption that he was so is not based on any evidence; secondly that the amendment to C1. (e) of Section 195, Ben. Ten. Act, which extends the definition of khudkhast raiyat by including occupancy raiyats, does not help the defendants, inasmuch as the amended Act came into force in February 1929, whereas the Patni sale took place in the year 1926. The third ground is that the engagement referred in Clause (iii) of Section 11, Patni Regulation, could not include an engagement creating fixity of rent, as the concluding portions of the clause itself would show.

(3.) The first point does not really present any difficulty. In Gopendra Chandra Mitter v. Mokaddan Hossain (1894) 21 Cal 702 the suit was to cancel a mokrari tenure granted toy a previous patnidar. It was held by Ghose, J. that the mokrari lease was an incumbrance upon the Patni, but as in Section 11, Patni Regulation, a distinction was made between incumbrances by way of sale, gift or otherwise and the leases which were creative of an intermediate interest, the mokrari in question would not be an incumbrance within Clause (i) of Section 11 but would be a lease within Clause (ii). In that case the lease created an under, tenure between the patnidar and the actual cultivator and hence came under Clause (ii) of Section 11, and it may be said that there is a distinction between incumbrances and under- tenures in the Patni Regulation also, the former being destroyed by the sale itself, while the latter remain subsisting till they are actually annulled: Arun Chandra V/s. Sarojit . When however no under tenure is created, but the cultivator himself is given a right of fixity of rent, the grant of Mokrari right is in my opinion an incumbrance within the meaning of Section 11 of C1. (i) of the Patni Regulation, and the right cannot subsist after the Patni sale, unless it comes within the exception provided for in C1. (iii) of Section 11. The term incumbrance is not defined in the Patni Regulation and the instances of sale, gift, mortgage as given in Clause (i) are certainly not exhaustive: vide Maharaja Prodyot Kumar Tagore V/s. Gopi Krishna (1910) 37 Cal 322. According to the Encyclopedia of American and English law, an incumbrance is a burden upon land, which is depreciative of its value such as a lien, easement, servitude, and which though adverse to the land holder does not conflict with his conveyance of the land in fee.