Mahomed Ayejuddin Mea v. Prodyot Kumar Tagore

The Judgment of the Court was as follows:—

In these appeals the Defendants appeal from a judgment of the Additional Subordinate Judge of Mymensingh, dated the 31st July 1917. The subject-matter of Appeal No. 67 is 203 bighas of land within Mouzah Bamna and 10 bighas 11 cottahs of land within Mouzah Gilibari, both these mouzahs being in the District of Mymensingh in Sub-division Jamalpur; the subject-matter of Appeal No. 22 is 432 bighas 3 cottahs of land within Mouzah Chinaduli in the same District and Sub-division. Mouzahs Bamna, Gilibari and Chinaduli are situate in Perganah Patiladaha which is within the Touzi of the Collectorate of Zillah Rungpur, the zemindari right in which perganah is vested in Maharaja Sir Prodyot Kumar Tagore subject to a mortgage in favour of the Secretary of State. The lands in dispute were formerly in the possession of one Makhan Lal Pande as a jotedar but after his death they were settled with his grandsons (daughter's sons) Hari Charan and Hari Sebak Bajpai: Hari Sebak died in 1888 leaving two sons, Chandra Mouli and Chandra Bhusan; Hari Charan died in 1898, his son Chandra Gur predeceased him leaving three sons, Rama Nath, Biswa Nath and Jadu Nath; Chandra Mouli, Chandra Bhusan, Rama Nath, Biswa Nath and Jadu Nath remained in possession of the lands in dispute and paid rent in respect thereof down to the year 1914 when they sold the lands in dispute to the Appellants. During the occupation of the descendants of Hari Sebak and Hari Charan the lands in dispute were cadastrally surveyed and a record-of-rights, which was finally ??? on the 27th February 1913, was prepared under the Bengal Tenancy Act in which the descendants of Hari Sebak and Hari Charan named above were entered as having a permanent tenure in respect of the lands of Appeal No. 22 and as having a permanent tenure in respect of 203 bighas of Appeal No. 67 and as raiyats with a right of occupancy in respect of the other lands. As a result the Respondents applied under sec. 106 of the Bengal Tenancy Act to the settlement authorities for rectification of the entries. Whilst these proceedings were pending the sale took place and the sec. 106 proceedings where withdrawn and the suits in respect of which these appeals arise were filed on the 30th July 1915 and the 5th August 1915 claiming a declaration that the entry in the record-of-rights was incorrect and null and void and seeking a decree for vacant possession and ejecting the Defendants from the lands and the learned Subordinate Judge has passed a decree in both suits in terms of the prayers. Perganah Patiladaha was, it is said, formerly in Rungpur and even now the Rungpur Collectorate has jurisdiction over the perganah although it is within the Civil Jurisdiction of Mymensingh and the main contention of the Appellants in these appeals is that the jotes in dispute are khod or khodkhast jotes having the same incidents of tenure as Rungpur khod jotes which are said to be heritable and transferable although liable to enhancement of rent, such jotes being said to be held on permanently renewable leases for varying terms (in the case of the lands in dispute the term being nine years and in one case seven years and in one five years), the rent being liable to enhancement according to the rate prevailing in the perganah at the expiration of the term. There is no evidence on the record as to the terms upon which Makhan Lal Pande held the jotes but in respect of the lands of Appeal No. 22 there are three documents in existence with regard to the terms of the holding of Hari Charan and Hari Sebak, these are Exs. 1a, 1b and 1c. Similarly, with regard to the lands of Appeal No. 67 there are three documents (Exs. 10d, 10f and 10g) which relate to the terms of the holding of Hari Charan and Hari Sebak in these lands. It will be convenient to, examine these at this stage. Ex. 1a is dated the 2nd June 1860 and is executed by Hari Sebak and Hari Charan in favour of Prasanna Kumar Tagore, it is described as a dowl bandobast of money in respect of G-irdh Islampur of Division Islampur, Perganah Patiladaha, included in village Kismat Chinaduli, and Hari Sebak and Hari Charan are described as the malguzardars of sarasari jote. It states that Hari Sebak and Hari Charan were satisfied as to the annual rent of the land which was fixed at Rs. 205-8 annually for a period of nine years and that they took the land on the arrangement stated up to the mead (that is, the term). They agreed thereby to pay the rent during the term and a similar rent after the term expired until a fresh arrangement was come to according to the measurement and to the rent prevailing in the perganah. The document concludes with a statement that in the jote except the raiyati right there was no right of gift, sale or settlement in ijara or of sale by a third party in execution of a decree or of partition without the consent of the sarkar. Ex. 1(b) is dated the 15th December 1870 and is executed by Hari Sebak and Hari Charan in favour of the Executors of Prasanna Tagore. It is described as a dowl bandobast of land and money rent and relates to the same property, the rent being fixed at Rs. 236-8 for a period of nine years. The lessees agree to preserve the trees and state that the right to be enjoyed is raiyati right and that there is no right of sale, gift and giving in ijara settlement on transfer without the consent of the sarkar. The document concludes with a provision that after the mead if they did not file a fresh meadi dowl kabuliyat within one year, according to the rent assessed after measurement and according to the rent prevailing in the perganah the jote would come into the khas teshil of the sarkar.

Ex. 1(c) is dated the 4th April 1880 and is in respect of the same land and is executed by Hari Bebair and Hari Charan for a term of nine years in favour of the Receiver of the Estate of Prasanua Kumar Tagore and is described as a dowl bandobast of money rent of land, the rent being Rs. 247-12. It is further described as a deed of sarasari dowl kabuliyat and contains an agreement to preserve the trees and the same provisions as to transfer, renewal, etc., as are contained in Ex. 1(b)

The other kabuliyats, Exs. 10(f), 10(g) and 10(d), are dated, respectively, 4th January 1864, 27th December 1870 and the 16th. June 1878, the first is in respect of Grilibari alone and is for five years, the other two extending both to Bamna and to Gilibari are for seven and nine years respectively. The period of the last kabuliyat expired in 1887. They are similar in terms to the other kabuliyats referred to above with regard to transfer and renewal. The rent payable under Ex. 10(d) is higher than the rent payable under Ex. 10(g).

The Appellant sought to found some argument on the use of the term dowl kabuliyat arguing that dowl means the paper in which the rent is assessed and that a dowl kabuliyat merely fixes the rent and does not contain all the terms of the tenancy arguing that the terms and nature of the tenancy must be sought elsewhere, in the present case in the custom prevailing with regard to khod jotes of Rungpur. I do not think that this argument can prevail, the mere fact that you call a document a dowl kabuliyat does not decide its nature, you have to look at the document as a whole to see what it is and moreover in some of the dowls at any rate they are described as dowl bandobast of land and money rent.

On behalf of the Respondents stress is laid on the use of the word “sarasari” in the dowls which they say means in connection with the word jote a temporary jote, the Appellants on the other hand say that the word means “ordinary.”

To establish that these jotes are khod or khodkhast jotes the Appellants rely on the receipts given by the landlord, Exs. B, 131 and B, 145, where you find the words “khod kismat Chinaduli,” “khod kismat Bamna Gilibari,” “fasal kismat Gilibari” and “chukani kismat Gilibari.” To illustrate the nature of khudkhast jotes we were referred to a passage from the judgment of Mr. Justice Trevor in Thakooranee Dassee v. Biseswar Mookherjee [known as the Great Rent Case] (1) where he states “khudkhast raiyats are simply “cultivators of the lands of their own village” who, after “being once admitted into the village, have a right of occupancy so long as they pay the customary rents and therefore with a tendency to become hereditary and with an interest in the produce of the soil over and above the mere wages of labour and the profits of stock, in other words, above the cost of production” and we were also referred to Phillip's Law of Land Tenures in Bengal (being the Tagore Law Lectures for 1874-1875), where it is stated at p. 17 that these cultivators (that is, khudkhast raiyats) held a permanent hereditary and although originally an inalienable, yet probably subsequently a transferable, interest in the land.

To establish that khod jotes of Patiladaha have the incidents of Rungpur jotes the Appellants rely on the fact that Patiladaha was once a part of Rungpur and that it is even now in the jurisdiction of the Rungpur Collectorate. And with regard to the incidents of Rungpur jotes we were referred to various passages in judgments and in works dealing with Bengal where the nature and incidents of Rungpur jotes are discussed.

In Huro Mohun Mookerjee v. Ranee Lalun Monee Dassi (2), a case of the year 1864 dealing with transferable interests, the following passage occurs in the judgment: “It is not essential that a raiyat should have a ‘mokurari’ jote in order to dispose of his ‘rights in a holding.’ There are various descriptions of tenures other than mokurari that can be sold and are sold every day. The howlahs and neemhowlahs of Backergunge and the jotes of Rungpur for instance, neither of these holdings are, properly speaking, ‘mokurari’ but they are mourasee and contain hereditary rights which are and always have been considered transferable.”

Again in Tara Monee Dassee v. Biseswar Mozumdar (3) in discussing whether a right of occupancy is a transferable tenure the following passage occurs in the judgment:— “The question then arises ‘Is a right of occupancy a transferable tenure.’ We think that it is so transferable. A right of occupancy is after all a perpetual lease, the holder of which cannot be ejected so long as he pays a fair and equitable rent. There are many similar rights common in different parts of Bengal such as the jotes of Rungpur and the howlahs and neem-howlahs of Backergunge which are in effect in no respect higher than that of a right of occupancy inasmuch as they are mere personal rights which are and have always been held to be transferable as well as heritable.” In Hunter's Statistical Account of Bengal, Vol. VII, (published in 1876) at p. 278, the learned Author states: “In other parts of Bengal the word jotedar signifies an actual cultivator; but in Rungpur District it is used to denote a middleman between the zemindar and the actual cultivator who has a right of occupancy but is liable to enhancement of rent. This tenure is common in Rungpur towards the east of the District. In Perganah Baharband are several very large jotedars, some of them being in receipt of an income of Rs. 50,000. The term of the lease by which the rent is fixed is usually for five or ten years. The tenure is transferable and hereditary. A superior jotedar can sublet his tetnure to an inferior holder, transferring all the rights and privileges he himself enjoys from the zemindar. A jotedar cannot be ousted from his holding, even on the expiration of his lease, except under a decree of the Civil Court; but when arrears of rent are adjudged against him his tetnure is liable to sale and the lease can be annulled.”

In a report on the District of Rungpur by Mr. Glazier published in 1873 the following occurs at p. 47 in Vol. 2 published in 1876: “The raiyats” position also in respect of security of tenure, though leaving much to be desired, is better than elsewhere. Returns give 25 percent, only of the raiyats as possessing a right of occupancy; but these returns have been presented by the zemindars and the number is probably much larger. A larger number of sales of jotes or raiyats' holdings are annually registered, and I have made enquiries of the sellers in a number of cases respecting the time they have held the land and in almost every instance the answer has been from two to three generations or for 20 or more years. In a few cases only did the seller say he had held the land for 12 years or a shorter period. The right of occupancy is a legal term dating from 1859 and is not generally recognised. The sales of jotes by private deed or decree of Court which constantly take place are made without any reference to or mention of, the time of occupancy of the previous holder. The Rungpur jotes vary from a rental of from Rs. 2 to Rs. 50,000 or more. The smaller jotedars are raiyats proper the larger ones are middlemen, and all jotes, large or small, are saleable and heritable. This Rungpur custom, in which it deviates from the law regulating rights of occupancy laid down in Act X (i.e, Act X of 1859), has forced itself on the notice of the Civil Court, despite the tendency of law to prune down all excess of foliage into the same formal shape.”

In the report of the Rent Law Commission, Vol. 1 (published in 1881) at p. 10, para. 14, the following occurs: “As to Rungpur, we take the following passage from a letter of Mr. Glazier the Collector, written in 1876: “The raiyat who holds direct from the zemindar is called a jotedar and his holding is a jote, whatever its size, which may and does vary from one paying a rent of one rupee to one of which the rent is half a lakh. The large majority of jotedars have small holdings and as raivats proper, cultivating their lands either by their own and hired labour or on the system of adhiyari or halvers. But a large number of jotedars have raiyats under them who are called either chukanidars or kurpa prajas. The chnkanidars too have often raiyats under them, and in some cases especially in the larger jotes, there are four and more degrees before you get to the actual cultivator. Jotes are saleable quite irrespective of the term during which they have been held, whether jotes held direct from the zemindar or chukani jotes which are held from jotedar. If a man gets a jote to-day he can legally transfer it by sale to-morrow. Such sales of jotes by registered deed or on decree of Court are of daily occurrence.”

We were taken through the oral evidence and the record which is said to establish the heritability and transferability of the khod jotes of Patiladaha. It is not, I think, necessary to examine this in detail but it is sufficient to say that in many cases on the death of a holder settlements were made with his heirs and in some cases with transferees but inasmuch as dowls were executed and nazar paid of varying amounts I do not think that this evidence really advances the Appellants' case. It is, however, noticeable that no case of ejectment of a transferee of a jote in the perganah has been brought to our notice but it is also noticeable that only in two or three cases do you find evidence of the erection of permanent structures on such lands.

In addition to the evidence adduced as to the heritability of Bungpur jotes, which these are said to be, in order to show that jotes in Patiladaha are heritable the Appellants rely inter alia (1) on Ex. E, a kistbandi mortgage bond, not, however, in respect of the lands in suit, (2) on Ex. G, a judgment in a suit for possession of other lands in the perganah, (3) on Exs. 1(1) and 1(2), plaints in rent suits brought by the Maharaja against the heirs of Hari Sebak and Hari Charan.

Ex. F was executed by the sons of one Lakhan Fakir, a jotedar in Patiladaha, in favour of the Receiver of the Estate of the late Prasanna Kumar Tagore and stress is laid on the fact that the sons are referred to as heirs of Lakhan Fakir and that the settlement of the land had been made with them after Lakhan's death (see the evidence of Kalipada Bandopadhyya, Witness No. 5 for the Plaintiff, in cross-examination), it being argued that unless the jotes were heritable it is unlikely that the mortgage would have been taken by the Tagore Estate. This is not, I think, in any way conclusive as the estate may have been willing to have the sons as tenants and to take from them such security as they could get. Ex. G is a suit against Upendra Mohan Tagore by the sons of jotedar for possession and the Plaintiff secured a decree for possession in right of his father. Exs. 1(1) and (2) are, as already stated, rent suits against the heirs of Hari Sebak and Hari Charan with whom no fresh settlements had been made on the deaths of Hari Sebak and Hari Charan and are in respect of the disputed lands but whilst they are recognition of the heirs as tenants in occupation of the land, I doubt if they can be taken as establishing the heritability of the jotes.

I have referred in some detail to the Appellants' evidence which is said to establish the nature and incidents of the jotes as the question was discussed before us at length and because it is necessary to consider how far it is admissible in the present case but to my mind the nature of the tenancies must fall to be determined by the construction of the dowls already referred to and any evidence designed to show customary incidents of tenure as attaching to the jotes must be rejected if and so far as it conflicts with what is contained in the dowls themselves, proviso 5 to sec. 92 of the Indian Evidence Act, 1872 and see Webb v. Plumer (4), where evidence of custom as to quitting an agricultural tenancy was sought to be given and it was held that as the written document provided for this the custom of the country was excluded. Authority to the same effect will be found in Boraston v. Green (5), Clarke v. Royston (6) and Brown v. Byrne (7). Coleridge, J., at p. 715 states the principles as follows: that evidence of custom must not be of a particular which is repugnant to or inconsistent with the written contract.

Turning to the dowls before us we find in each of them an express statement that there is no right of sale, gift or transfer without the landlord's consent and in face of this it is to my mind impossible to admit evidence of a custom of transferability in these jotes. Again, we have the fact of periodical renewals and a proviso in the dowls that if after measurement and assessment of rent a fresh agreement is not entered into within one year the jotes pass into the landlord's vacant possession which seems to me to conflict with any custom of heritability. The only right shown is, I think, an option to take a renewal at the rate of rent prevalent in the perganah which is a part of the contract and arises thereunder. I hold therefore upon the construction of the dowls that the tenancies created by them are neither heritable nor transferable and that no evidence of custom is admissible on these heads.

One or two small matters remain to be referred to in connection with the dowls. The right to be enjoyed is said to be a raiyati right but both sides before us and in the lower Court argued the questions in dispute on the footing that these are tenures and not raiyati holdings. Treating them as tenures they were created before the Transfer of Property Act and the argument founded on sec. 10 of that Act (even assuming that the section applies to tenancies such as the present), namely, that any provision against transferability is repugnant to the nature of the tenures and therefore void, accordingly fails. It will be convenient in this connection to refer to another argument that was raised on behalf of the Appellants. It was said that the provisions with regard to transfer must be treated as covenants and that inasmuch as there is no provision for re-entry upon transfer no right of forfeiture arises on transfer but only a right to damages. I think that so far as this argument is concerned, it is sufficient to say that in the present case the terms of the tenancies have determined and that no such question arises in the present case. So far I have dealt with the question in dispute on the footing that the matter was free from authority but there are numerous decisions of Division Benches of this Court on second appeal with regard to the construction of similar dowl kabuliyats referring to Patiladaha jotes which are binding upon us if the question turns, as we hold it does, on the construction of the dowls themselves.

This was so decided (namely, that they are neither transferable nor heritable) in Prodyot Kumar Tagore v. Sarat Chandra Das (8) and to the same effect are the decisions in the following unreported cases of Mohim Chandra Pal v. Prodyot Kumar Tagore in Appeal from Appellate Decree No. 2834 of 1915, * Prodyot Kumar Tagore v. Bhuban Moyi Dasya in Appeal from Appellate Decree No. 1220 of 1916; and also the decisions in Appeals from Appellate Decrees Nos. 1040, etc., of 1916.

I now come to deal with the other questions raised on behalf of the Appellants. First, it is said that the suits are misconceived and that no civil suit lies to correct an entry in the record-of-rights prepared under the provisions of the Bengal Tenancy Act, the procedure applicable being said to be that, provided by sec. 106 of that Act. It is further said that sec. 106 proceedings having been commenced and withdrawn without leave to institute fresh proceedings the present suits are incompetent. Secondly, it is said that in any case the heirs of Hari Sebak and Hari Charan were tenants from year to year, that this was an interest transferable under the law and that this tenancy could only be terminated by notice which admittedly has not been given in the present case with the result that the tenancies are still subsisting. Thirdly, it is said that if the heirs of Hari Sebak and Hari Charan were not yearly tenants, they were trespassers and have acquired by adverse possession a tenancy right.

With regard to the first of these points we were referred to Jogendra Nath Roy v. Krishna Pramada Dassi and to Apurba Krishna Roy v. Shyama Charan Pramanik (10). The first of these cases furnishes authority for the Appellants' contention but in the second case there had already been a decision inter partes on the very question raised in the civil suit which I understand to be the ratio decidendi in the case. On the other hand, Troilakhya Nath Bose v. Macleod (11) and Sasi Bhusan Hazra v. Sheikh Eshab (12) are decisions to the opposite effect. And, moreover, the case of Jogendra Nath Roy v. Krishna Pramada Dassi has been expressly dissented from in Gulab Misser v. Kumar Kalanand Singh (13) and Pandab Dowari Das v. Ananda Kishun Ghakraverty (14). On a consideration of these decisions we are not prepared to hold that the present suit cannot be maintained.

The second point raises questions of some difficulty and it will be convenient to state briefly the position as it appears to us. After the expiry of the last of the dowl kabuliyats and the payment of rent Hari Charan and Hari Sebak held the land as yearly tenants on the terms of the dowl kabuliyats so far as applicable to a yearly tenancy. This is the general law and see sec. 116 of the Transfer of Property Act. I think that upon the death of the last survivor of Hari Charan and Hari Sebak this yearly tenancy would descend to their heirs and in any case they were recognised as tenants as they were sued for rent (see Exs. 1-1 and 1-2). I think, therefore, that the heirs of Hari Sebak and Hari Charan remained as yearly tenants upon the terms of the dowl kabuliyat so far as applicable to a yearly tenancy. This yearly tenancy could only have been terminated by a notice expiring with the end of the year of the tenancy. The Appellants contend that irrespective of the Question raised with regard to the general transferability of the jotes, at any rate the heirs of Hari Sebak and Hari Charan could transfer the yearly tenancy vested in them and that as no notice has been given they are at the least yearly tenants whose tenancy has not been duly determined by notice to quit and that accordingly these suits must fail on this ground.

They say that the yearly tenancies created were new tenancies created after the enactment of the Transfer of Property Act and that they are therefore assignable and that even if they are non-transferable, by reason of the terms of the dowl kabuliyat being applicable, that there is no right of re-entry reserved upon transfer or assignment and that consequently there is no forfeiture.

The Respondents contend on the other hand that the heirs of Hari Charan and Hari Sebak having left and ceased to pay rent and having neglected to take settlement after having been asked to do so have abandoned the land with the result that the landlord can re-enter and evict the Defendants as trespassers and reliance is placed on Hanuman Prosad Singh v. Deo Charan Singh (15) which was a case of homestead land and on Hari Mati Dassya v. Ananda Prosad Ghosh (16), where the legal relation between the parties was created in 1864 and it was held that the Transfer of Property Act had no application. We were also referred to Ananda Mohan v. Gobinda Chandra (17), where the yearly tenancies came into existence before the passing of that Act. The question therefore would appear to turn on the date when the legal relation between the parties was constituted. I think that under the facts and circumstances of this case the legal relation between the heirs of Hari Charan and Hari Sebak must be deemed to have come into operation after the passing of the Transfer of Property Act and that consequently they had a yearly tenancy in the land which was capable of transfer. This being so to determine the tenacies notice was necessary which has not been given. I should add that these are not on the authorities agricultural tenancies within the meaning of sec. 117, of the Transfer of Property Act and that Chap. V of that Act is accordingly applicable. With regard to the third point no question of limitation, I think, would in any case arise. The life-tenant, Jatindra Mohan Tagore, died in 1908 and consequently time would not commence to run against the present Maharajah until that year.

In the result we declare that the entry in the record-of-rights which was finally published on the 27th February 1913, in so far as it declares that the heirs of Hari Charan and Hari Sebak have permanent intermediate right in the lands in dispute is erroneous but inasmuch as no notice has been given to determine the yearly tenancies of the heirs of Hari Charan and Hari Sebak which said tenancies are now vested in the Appellants we can make no decree for possession in favour of the Respondents or to eject the Appellants and to this extent the appeals succeed and the suits will stand dismissed. Each side has succeeded in part and failed in part and we make no order as to the costs of the appeals and each side will bear its own costs in the lower Court.

N.G