BANSIDHAR DOBEY Vs. BUDANGAL DAS

JUDGEMENT

(1.) This appeal arises out of a rent suit in respect of some land in the Western Duars in the district of Jalpaiguri. The plaintiff is a jotedar and the defendant is a chukanidar under him. In 1918 the chukani was purchased by the plaintiff in execution of a decree. In Chaitra 1325 (1919) the plaintiff let out the chukani to one Lepta Uraon who executed a kabuliat agreeing to pay Rs. 115 as rent. In 1920 the defendant purchased the land from Lepta Uraon. The plaintiff has brought this suit for rent at the rate of Rs. 115 a year. The defendant has pleaded that the plaintiff is not entitled to recover the rent at which he settled the land but at the rate of Rs. 104 odd which is that rent recorded in the settlement record. Both the Courts have accepted the defendant's plea and decreed the suit at the rate admitted by him. There was also a plea of payment. The plaintiff appeals and it is argued on his behalf that the defendant is bound by the engagement entered into by Lepta Uraon (his vendor) and he cannot plead that he is not liable for the rent fixed in Lepta's kabuliat. For the defence it is argued that under the law as it obtains in that part of the country the plaintiff is not entitled to recover more than 50 per cent, of the rent which he himself pays to the Government.

(2.) In order to appreciate the value of the respective contentions of the parties it is necessary to trace the history of the Western Duars and of the law in force there. The territory known as the Western Duars was ceded by the Bhutan Government to the British Government in 1866. By Act 16, 1869 (the Bhutan Duars Act) the jurisdiction of the ordinary civil Courts taking cognizance of suits in respect of immovable property, revenue and rent in the territory was excluded and certain rules were framed by the Government which formed the schedule to the Act, which had the force of law there. It was, however, found that the Act of 1869 was defective in many respects and so it was repealed by Act 7, 1895. In 1875 the Scheduled Districts Act (14 of 1874) was declared to be in force in the Western Duars, and Act 23, 1863 (the Act to provide for the claims to waste land) was also extended to the territory. See the Gazette of India of the 24 September 1875. By the repeal of the Act of 1869 the Civil Procedure (Code was held to be in force in the Duars : Brojo Kanto Das V/s. Tufaun Das [1900] 4 C.W.N. 287. But no substantive law was declared to be in force there except what would be extended under the Scheduled District Act. In 1895 the Lieutenant-Governor of Bengal with the previous sanction of the Governor-General extended Act 10, 1859 and Act 5, 1867 (B.C.) to the Western Duars under the Scheduled Districts Act. By a notification dated 5 November 1898 the Lieutenant-Governor of Bengal similarly extended under the Scheduled Districts Act the Bengal Tenancy Act to the Western Duars with some restrictions of which the following clause is relevant for our purpose. Where there is anything in the said Bengal Tenancy Act which is inconsistent with any rights or obligations of a jotediir, chukanidar, dar-chukanidar, Adhiar or other tenant of agricultural land as defined in settlement proceedings here-to-fore approved by Government or with the terms of a lease here-to-fore granted by Government to jotedar, chukanidar, adhiar or other tenant of agricultural land such rights, obligations or terms shall be enforceable notwithstanding anything contained in the said Act.

(3.) When the Duars became included in the late province of Eastern Bengal and Assam that Government by a notification dated 7 November 1908 extended under the Scheduled Districts Act the Bengal Tenancy Amendment Act, 1903 and the Eastern Bengal and Assam Tenancy Amendment Act of 1908 to the Duars with some restrictions one of which was the same as contained in the notification of the Bengal Government of 5 November 1898.