MIDNAPORE ZAMINDARY CO LTD Vs. CHANDRA SINGHA DUDHURIA

JUDGEMENT

(1.) These two appeals are by the defendants in two suits between the same parties for recovery of arrears of rent in respect of the same tenancy for two consecutive periods, namely 1328 B.S. to 1331 B.S. and 1332 B.S. to 1335 B.S. The facts which are not in dispute now are these : The plaintiffs are the proprietors of tauzi No. 523 of the Murshidabad Collectorate. The defendants hold a putni taluk comprising some villages appertaining to this tauzi at a rent fixed in perpetuity on the basis of a putni patta (Ex. A) executed by the processors-in-interest of the plaintiffs in favour of the predecessors-in-interest of the defendants on 5 November 1866. Some lands appertaining to the plaintiffs zemindary and the defendants putni were diluviated by the river Ganges in 1867-68. There was a Diara Survey. The proprietors of the estate received abatement of revenue under Section 5, Bengal Alluvion and Diluvion Act, (Act 9 of 1847) in the year 1871. The putnidars received no abatement. They claimed none. The lands comprised in the tenure in respect of which rent has been claimed in these two suits were formed in the year 1914. Proceedings under Chapter 10, Ben. Ten. Act of 1885, were begun for settlement of land revenue. Draft Record of Eights was prepared and published under Section 103-A(1) of the Act. Under Section 104 of the Act, the Revenue Officer settled fair and equitable rent for all classes of tenants including the defendants and prepared a settlement rent roll. The Revenue Officer treated these alluvial lands as accretions to the plaintiffs estate and the defendants putni by the recess of Mathbanga, a public navigable river. On 25 May 1920 the Settlement Officer settled Rs. 1028-2-0 a year as rent by the defendants to the plaintiffs for these lands according to their value disregarding the contractual rent fixed in perpetuity by the putni of 1866. Rs. 847 was assessed as land revenue upon the proprietors on the basis of this rent. The defendants appealed to the Board of Revenue against the assessment made by the Revenue Officer under Section 104-G, Ben. Ten. Act, on the ground that these alluvial lands were reformations in situ of the permanently settled lands included in their putni and. were therefore not liable to pay any additional rent. This appeal was dismissed on 2 April, 1921. The settlement rent roll was then incorporated with the Record of Eights and finally published under Section 103-A(2). The accretions then were formed into a separate estate under Section 1 of Act 31 of 1858 being temporary settled estate No. 3653 of the Nadia Collectorate. The plaintiffs took settlements of this new estate for a period of 15 years from 1921 (1328 B.S.) to 1936 (1343 B.S.).

(2.) In the year 1922 the defendants brought a title suit in the Civil Court being Suit No. 452 of 1922 in the Court of the Sub-ordinate Judge at Rajshahi for a declaration that these lands were not liable to pay any rent on the same ground as taken by them before the Board of Revenue. On 22 April, 1925 the plaintiffs instituted a suit in the Court of the Subordinate Judge of Nadia being Rent Suit No. 7 of 1925 for recovery of arrears of rents for the years 1328 B.S. to 1331 B.S. at the rate settled by the Revenue Officer. On 22 April, 1929, they instituted another suit in the same Court being Rent Suit No. 9 of 1929 - for recovery of arrears of rents for the years 1332 B.S. to 1335 B.S. at the same rate. On 19 May 1927, Title Suit No. 452 was dismissed by the trial Judge. The defendants preferred an appeal to this Court against this decision. This appeal was dismissed on 30 August 1930. The defendants then preferred an appeal to His Majesty in Council.

(3.) The two rent suits in the Nadia Court, were beard together and decreed by the Subordinate Judge of Nadia on 25 March 1931 subject to the final decision of the Privy Council appeal in the Rajshahi case. The defendants appealed to this Court against these decrees. On 18 April 1933 the plaintiffs brought another suit being Rent Suit No. 8 of 1933 in the Court of the Subordinate Judge of Nadia for recovery of arrears of rent for the years 1336 to 1339 B.S. in respect of the same tenure. The defendants appeals to this Court against the decrees in the two previous rent suits were allowed on 2 April, 1935 and the suits were remanded to the trial Judge with the following observation: Apart from the position that the liability of the defendant company depends on the result of the litigation now in progress before another Court, there was a definite plea raised in the written statement that under the terms of the putni patta the plaintiffs could not claim any rent for the lands in suit. On this plea, not only was there no-issue raised in the Court below, but when the suit came up for disposal and on the first and only day of hearing, the Subordinate Judge rejected the patta, when it was tendered in evidence for the defendants, on the finding that it was untimely filed. In the result, the decision ultimately reached was arrived at without consideration either of the issue definitely raised in the written statement or of the document on which that issue was founded. We are unable to support such a decision and hold, that it must be set aside and the case remanded to the Court below for full and proper consideration. The patta could not have been rejected for the reason given by the learned Judge and ought to have been received. It may be that the result of the Privy Council case will definitely decide the liabilities of the parties to these suits. Should this not be so, the Subordinate Judge will proceed to decide the issue raised with regard to the patta and after due consideration of that document, to pass the judgment in accordance with law.