JAHANGIRA Vs. KARRAR HUSAIN

JUDGEMENT

(1.) These are three connected appeals by a defendant in three connected suits for arrears of rent. It appears that the defendant, being a proprietor in a mahal, mortgaged his entire share with possession to the plaintiff. At the time of the mortgage the defendant was personally occupying certain plots of land in the mahal as his sir or khudkasht. The lands so occupied by him fell naturally into three classes. There were the sir lands strictly so called, there were khudkasht lands which the defendant had held for the fall statutory period of twelve years, and to which, therefore, in law all the incidents of sir attached although they were not yet recorded as such, and finally there were khudkasht lands which the defendant had occupied for less than the statutory period. Having mortgaged his share with possession the defendant entered into a contract of lease with the plaintiff. By this contract he undertook to hold all the lands of each of the three descriptions referred to above as tenant of the plaintiff at a certain specified rent for each class of land. The present suit is to enforce the terms of that agreement. It has been resisted on a variety of grounds; but we are concerned only with the points raised by the petitions of appeal before us. One of the pleas taken is that the decrees of the lower Appellate Court are not in accordance with the judgment, inasmuch as the total sum decreed in favour of the plaintiff in the three decrees is in excess of the total of Rs. 165 awarded by the judgment. We have looked into this point and are satisfied that there is no force in it. The judgment clearly intended to award interest, at least up to the date of the institution of the suit, at the statutory rate of twelve per cent. per annum on the sum of Rs. 165, and this interest is sufficient to account for the difference between Rs. 165 and Rs. 196-1- 0, which is the total of the three decrees, including interest to date. Two other points have been argued in this case: one is that the plaintiff is not entitled to sue at all, because the right to collect the rents of these lands is not vested in the plaintiff alone but in the entire body of co-sharers in the mahal to which the lands in suit appertain. In our opinion the defendant is estopped from raising this plea. He entered into a rent-agreement with the plaintiff in respect to these particular lands. If the plaintiff in enforcing his rights under that agreement is trenching on the rights of the other proprietors in the mahal, the latter have their remedy, either by way of a suit for settlement of accounts or by way of an application for partition. At any rate this defendant has admitted this plaintiff to have held these particular lands in severalty and has covenanted to occupy them as his tenant and to pay him rent therefor. The defence that other co-sharers should have joined in this suit is not open to him. The next point argued, although it is not easy to see how it is raised by any specific plea taken in the petition of appeal to this Court, has been that the rent agreement between the parties is unenforceable, being in contravention of the provisions of Section 10 of the Local Tenancy Act (No. II of 1901). This contention, of course, affects two of the suits only, namely, those in which rent is claimed in respect of the sir and of the khudkaskt of twelve years standing or over. Under the provisions of Section 10 aforesaid the defendant became an ex-proprietary tenant of these lands and entitled to the privileges of such tenant. The law required that his rent should be fixed by the Collector under Section 36 of the N. W. P. and Oudh Land Revenue Act of 1901. When these appellants were first before this Court the facts were not as clear as they should have been made, but they are established now by the findings which have been returned on the issues remitted by this Court. It is certain that there was a proceeding purporting to be under Section 36 aforesaid, by which the rent payable by the defendant to the plaintiff for these particular lands was fixed at the amounts specified in the agreement come to by the parties themselves. There is nothing in law to prevent the Revenue Court from accepting such an agreement. No doubt it is the duty of the Revenue Courts--and the reported decisions of the Board of Revenue show that that duty is jealously performed--to see that the provisions of Section 10 of the Tenancy Act (No. II of 1901) are not evaded and that a reckless and improvident proprietor is not permitted to contract himself out of them. At the same time all that the law has said on this subject of rent is that the ex-proprietary tenant is entitled to hold at a rate which shall be four annas in the rupee less than the rate generally payable by the non-occupancy tenants for lands of similar quality and with similar advantages in the neighbourhood. To begin with, it is obvious enough that these provisions fix a maximum rent, and there is nothing to prevent the parties concerned from contracting for the payment of a lower rate. Then again, there is nothing in law to prevent the parties from coming to an understanding amongst themselves as to what the prevailing rates of rent are and what advantages the ex-proprietary tenant is likely to get under the statutory provisions in question. They may come to a conclusion of their own as to what a fair rent, fixed with regard to the provisions of Section 10 aforesaid, is likely to be, and the law certainly does not forbid an agreement to pay the same. Such agreement is not enforceable in itself and could not be sued upon as it stands. What is wanted is an order under Section 10, Clause 5 aforesaid, fixing the rent to be paid by the ex-proprietary tenant; but the law does not lay down that this order cannot lawfully be based upon an agreement come to by the parties, still less that in passing it the Collector must not take into account the terms of such an agreement. The contention before us, after the findings have been returned on the remanded issues, has been that the proceedings which terminated in the order fixing the rent under Section 36 of the Land Revenue Act were irregular and that there was nothing to show that the question as to whether the agreement come to by the parties had given due effect to the provisions of Section 10 of the Tenancy Act in favour of the ex-proprietary tenant, was present to the mind of the Collector or Assistant Collector and duly considered by him. On this there are two things to be said. One is that the presumption of law is in favour of validity and regularity in the proceedings of a Court of Justice, and not the contrary. We know that the Assistant Collector acted upon a report of the Tahsildar. That report is not before us; but there is no reason why we should presume that it did not contain an expression of the Tahsildar s opinion as to the suitability and propriety of the rent agreed upon between the parties. In the next place, it is at least open to argument whether in a suit like the present the Court can enquire into the materials upon which the Collector or the Assistant Collector proceeded when he passed his order fixing the rent under Section 36 of the Land Revenue Act.

(2.) It so happens, however, that we are able to clinch this matter in the most satisfactory manner possible. The enquiry made under the orders of this Court shows that the rent agreed to be paid for the sir and khudkasht lands was a favourable rent and gave to the ex-proprietary tenant the full benefit of the statutory provisions. The Court below in enquiring into this point found that it was useless to take as exemplars the plots of land actually held by the few non- occupancy tenants (strictly so called) in this village, the fact being that all the best lands were included in the sir or khudkasht. It was inevitable, therefore, that the Court should enquire into the prevailing rates of rent paid for lands of similar quality and with similar advantages to those in suit, by a sub-tenant taking a lease of the same from the holder of the sir or the khudkasht rights. It has found that such lands are ordinarily let out for a rate of about Rs. 12 per pucca bigha and that the rent which the defendant covenanted to pay does not quite amount to Rs. 8 per pucca bigha. It is true that, when formally recording his finding on the issue remitted to him, the learned District Judge has expressed himself very clumsily and has fallen into what we have no reason to doubt is a clerical error. He says that the rent fixed on the defendant s sir and khudkasht land was "nearly equal" to that payable by other tenants for lands of similar quality and with similar advantages. If this finding be read in connection with the reasoning on which it proceeds, it is fairly clear that the Court intended to find that the rent so fixed was nearly equal, after the deduction of the statutory 25 per cent. It may be that in the absence of a petition of objections we might have felt compelled to hold the parties bound by the finding as recorded, if the case had turned upon this single point, but the really decisive issue in the case is the second issue as to the order of the Assistant Collector fixing the rent. And when we are asked to consider whether there is any ground for presuming that in passing that order the Collector had overlooked the provisions of Section 10 of the Tenancy Act and had not allowed the ex-proprietary tenant the advantages secured to him by that section, we are clearly entitled to take into consideration, not merely the finding actually recorded on the first issue, but the reasoning upon which that finding proceeds and the conclusions actually arrived at by the Court below on the evidence considered by it. The result is that there is really no force either in law or in equity in any of these appeals and we dismiss them accordingly with costs. Walsh, J.

(3.) I agree.