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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Moulvie Serajul Islam for the Appellant;
  • Moulvie Abdul Jowad for the Respondent.
Judges
  • Ghose
  • Stevens, JJ.
Acts
  • Bengal Tenancy Act affects the provisions of the section
  • Sec. 3, cl. 5 of the Bengal Tenancy Act
  • sec. 10 of the Bengal Tenancy Act,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Moulvie Serajul Islam for the Appellant;
  • Moulvie Abdul Jowad for the Respondent.
Judges
  • Ghose
  • Stevens, JJ.
Acts
  • Bengal Tenancy Act affects the provisions of the section
  • Sec. 3, cl. 5 of the Bengal Tenancy Act
  • sec. 10 of the Bengal Tenancy Act,
See more information ...
Smart Summary

Structured Summary of the Judgment

Factual and Procedural Background

This appeal arises from a suit brought by a zemindar for the ejectment of a putnidar. The zemindar alleged that the putnidar had failed to pay rent as stipulated in the putni grant and had thereby forfeited his tenancy, making him liable to ejection.

At first instance (the Munsif), the court held that the plaintiff (zemindar) was not competent to maintain the ejectment action because the lease was of a permanent character, despite a provision (kabuliyat) purporting to make the lease cancellable on non-payment of the rent reserved.

On appeal, the District Judge dissented, remanding the case for retrial. The District Judge considered that two items (Rs. 46-6-6 and Rs. 46) payable under the lease to third parties could not be regarded as rent, and thus raised the question whether non-payment of those items could render the putnidar liable to ejectment. The District Judge referred to Assanullah Khan Bahadur v. Tirthabashini and to sections 179 and 195(e) of the Bengal Tenancy Act.

The Court delivering this judgment reviewed the kabuliyat, statutory definitions and provisions of the Bengal Tenancy Act, relevant observations in prior cases (including Assanullah Khan Bahadur v. Tirthabashini and Rutnessur Biswas v. Hurish Chunder Bose), and the Putni Regulation (VIII of 1819), and concluded that the Munsif's original decision was correct. The appellate decree was set aside and the decree of the Court of first instance restored with costs; appeal allowed.

Legal Issues Presented

  1. Whether amounts reserved in the putni kabuliyat that are payable to third parties (specifically Rs. 46-6-6 to the Collector and Rs. 46 for a musjid) constitute "rent" under the Bengal Tenancy Act's definition (sec. 3, cl. 5).
  2. Whether a holder of a permanent tenure (putni taluk) may be ejected by his landlord for non-payment of rent when the lease contains a condition of forfeiture or cancellation for non-payment—i.e., whether such a condition is consistent with the Bengal Tenancy Act (notably sec. 10 and sec. 65) and relevant putni law.
  3. Whether the Putni Regulation and the statutory savings (sec. 195(e)) permit cancellation of putni tenures for arrears, or whether the statutory and regulatory scheme limit the landlord's remedy to sale in execution (auction) under a decree for rent.

Arguments of the Parties

Appellant's Arguments (zemindar / Appellant's vakil)

  • The kabuliyat plainly shows that Rs. 136-6-6 (inclusive of Rs. 46-6-6 and Rs. 46) was agreed to be paid as rent; the two items payable to third parties formed part of the ground rent and were lawfully payable on account of the use and occupation of the land.
  • Section 3, clause 5 of the Bengal Tenancy Act defines "rent" as whatever is lawfully payable by a tenant to his landlord on account of the use or occupation of the land, and the language of the grant brings the two items within that definition.

Respondent's Arguments (putnidar / Respondent's vakil)

  • Relying on observations in Assanullah Khan Bahadur v. Tirthabashini and on Rutnessur Biswas v. Hurish Chunder Bose, the Respondent contended that sums payable to third persons under a lease cannot be regarded as "rent" for the purpose of an ejectment claim and therefore non-payment of such items should not form the basis for ejectment.
  • The District Judge adopted the view that two items payable to third parties could not be regarded as rent and remanded for a retrial focused on whether breach of those payments justified ejectment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Assanullah Khan Bahadur v. Tirthabashini That payments made under a putni settlement (e.g., chowkidari tax) which form part of the engagements under the putni settlement are payable as part of the ground rent and are recoverable; but the case also contained observations (in a different factual context) that where a contract obliged the putnidar to pay certain expenses not payable to the zemindar, the claim might be one for compensation, not rent. The Court treated this case as generally supportive of the proposition that items payable under the putni settlement can amount to "rent." The Court also distinguished and declined to apply the narrower observations about dâk charges (which arose in a different factual matrix) as authority for the District Judge's position.
Rutnessur Biswas v. Hurish Chunder Bose Referred to for the proposition (as understood by the Respondent) that an amount payable to a third person cannot be treated as "rent" payable as such to a third person. The Court examined the reported facts and concluded that in that case the sum sued for was not part of the rent reserved by the lease; thus the decision could not be read as establishing the broad proposition for which the Respondent contended, and it was not treated as applicable authority in the present case.

Court's Reasoning and Analysis

The Court proceeded through a statutory and textual analysis and factual comparison with prior authorities:

  1. Definition of "rent": The Court relied on Sec. 3, cl. 5 of the Bengal Tenancy Act which says: "'rent' means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant." Applying that definition to the terms of the putni kabuliyat, the Court found that the aggregate sum of Rs. 136-6-6 was agreed as rent, and that the two specified items (Rs. 46-6-6 to the Collector and Rs. 46 for the musjid) were lawfully payable on account of use and occupation just as the Rs. 50 payable directly to the zemindar.
  2. Treatment of prior case law: The Court considered Assanullah Khan Bahadur v. Tirthabashini and concluded it supports the proposition that payments forming part of the putni settlement may amount to ground rent and be recoverable; it also noted that some observations in that case were made in a different factual context (claims for dâk charges) and therefore could not be taken as general authority for the District Judge's narrower reading.
  3. Distinguishing Rutnessur Biswas: The Court reviewed Rutnessur Biswas and determined that the sum sued in that case was not part of the rent reserved under the lease. Consequently, the Court rejected the broad conclusion urged by the Respondent that any portion of a reserved sum payable to a third person cannot be "rent" under Sec. 3.
  4. Statutory framework on ejectment: Turning to Sec. 10 of the Bengal Tenancy Act, the Court observed that a holder of a permanent tenure shall not be ejected by his landlord except on breach of a condition which (if contract made after the Act) is consistent with the Act. The Court then considered Sec. 65, which provides that permanent tenure-holders shall not be liable to ejectment for arrears of rent but that the tenure shall be liable to sale in execution of a decree for rent, with rent being a first charge.
  5. Interaction with putni law and savings: The Court noted Sec. 178(e) and Sec. 179 (allowing permanent mokurati leases) but relied particularly on Sec. 195(e) which saves enactments relating to putni tenures "in so far as it relates to those tenures." The Court therefore examined the Putni Regulation (VIII of 1819). Clause 3 of Sec. 3 of the Regulation treats putni taluks as valid in perpetuity and provides that an arrear shall not render the tenure liable to cancellation but that the tenure shall be brought to sale.
  6. Conclusion from statutory/regulatory scheme: Because the Putni Regulation (and the statutory saving) preserve the rule that putni tenures cannot be cancelled for arrears but may be brought to sale, the Bengal Tenancy Act does not affect that provision. Hence, even where the rent (as defined) is unpaid, the remedy is sale in execution of a decree for rent, not forfeiture and ejectment.
  7. Outcome as to remand: Given these findings, the Court held the Munsif's conclusion (that the plaintiff was not competent to maintain the ejectment action because the lease was permanent and cancellation for arrears was not available) was correct and that the District Judge erred in remanding the case for retrial.

Holding and Implications

Appeal allowed; the decree of the Appellate Court is set aside, and the decree of the Court of first instance (the Munsif) is restored with all costs.

Direct consequences for the parties:

  • The zemindar (plaintiff) is not entitled, on the facts as decided, to eject the putnidar on the basis of the lease provision purporting to cancel the putni tenure for non-payment of the reserved sum; the Munsif's finding that the plaintiff could not maintain an ejectment action is restored.
  • Although the items in question (Rs. 46-6-6 and Rs. 46) were held to form part of the rent, the statutory and regulatory scheme provides that a putni tenure shall not be cancelled for arrears but may be put up for sale in execution of a decree for rent.

The opinion does not announce any broader novel precedent beyond its statutory and regulatory interpretation; it resolves the dispute by applying the Bengal Tenancy Act and the Putni Regulation to the facts and restores the first-instance decree.

Show full summary ...

    Mohebut Ali v. Mahomed Faizullah

    The Judgment of the Court was as follows:—

    This appeal arises out of a suit by a zemindar for ejectment of a putnidar upon the ground, that by reason of non payment of rent by the putnidar, as stipulated in the putni grant, and the conditions contained therein, he, the Defendant, had forfeited his tenancy, and was therefore liable to be ejected.

    The Court of first instance, referring to various sections of the Bengal Tenancy Act, held that the Plaintiff was not competent to maintain the action for ejectment, the lease being of a permanent character, notwithstanding the stipulation contained in the kabuliyat that in the event of the Defendant failing to pay the rent reserved at the time appointed, his lease would be liable to be cancelled, and the zemindar would be entitled to enter into khas possession.

    The learned District Judge on appeal has, however, expressed a contrary opinion, and he has remanded the case for re trial with reference to certain observations made in his judgment. What that officer has in substance held is that, whereas, out of the sum, Rs. 136,6-6 reserved upon the putni lease, two items, Rs. 46-6-6 and Rs. 46 were payable to third parties, they could not be regarded as rent; and therefore the question is whether, by reason of the Defendant having violated the conditions in the kabuliyat as regards the payment of these two items of money, he is not liable to be ejected. And the learned Judge has, in support of his view, referred to the case of Assanullah Khan Bahadur v. Tirthabashini , and to secs. 179 and 195(e) of the Bengal Tenancy Act.

    Now, referring to the kabuliyat itself which was executed by the Defendant, putnidar, in favour of the Plaintiff zemiddar, we find that what was agreed to be paid as rent was Rs. 136-6-6. The zemindar, had, however, to pay to the Collector as cases upon the property in question Rs. 46-6-6, as also Rs. 46, as expenses for the maintenance of a musjid on the property demised. The putnidar was directed in the lease to pay, on behalf of the zemindar, these two sums of money to the Collector, and to the party who had to conduct the expenses of the musjid, respectively; the balance Rs. 50 being payable to the zemindar direct. There are various passages in the putni kabuliyat to which our attention has been called by the learned vakil for the Appellant, which unmistakably show that Rs. 136-66, inclusive of Rs. 46-6-6 and Rs. 40, was rent and nothing but rent. Sec. 3, cl. 5 of the Bengal Tenancy Act defines what rent means. It says: “‘rent’ means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant.” And we think, having regard to the terms of the grant in this case, that the two items of Rs. 46-6-6 and Rs. 40 were lawfully payable on account of the use and occupation of the land held by the putnidar, just as much as the sum of Rs. 50, which was payable to the zemindar direct.

    As regards the case of Assanullah Khan Bahadur v. Tirthabashini referred to by the District Judge, it appears that the suit instituted by the zemindar was for recovery of arrears of chowkidari tax payable by the putnidar under the putni settlement; and the defence was that it was an illegal cess, and could not be legally recovered. And it was held by this Court that as the payment of the said tax was one of the terms of the putni settlement itself, which was entered into between parties competent to contract, and was made for valuable consideration, and the Putni Regulation declares that putni taluks shall be deemed to be valid tenures in perpetuity according to the terms of the engagements under which they are held, and moreover, as the amount which the putnidar agreed to pay as chowkidari tax, is paid quite as much on account of the occupation of the property as that which is expressly called “the rent,” and is part of the ground rent, quite as much as the latter, it is not an abwab, and is therefore recoverable.

    This case is rather an authority in favour of the Plaintiff than against him. But the learned vakil for the Respondent has called our attention to certain observations made by the Court in p. 684. It will, however, be observed that those observations were made with special reference to the case that was quoted by one of the parties before it in support of the contention that the suit being of the Small Cause Court class, no second appeal would lie to this Court. In that case the claim was by the zemindar against the putnidar founded upon a contract for recovery of a sum of money which had been expended by the zemindar in the way of zemindari dâk charges, which expenses, it was alleged, the putnidar was bound by his contract to bear. And the learned judges in the case of Assanullah Khan Bahadur v. Tirihabashini held, having regard to the facis of that case, that “the contract was one by which the putnidar undertook to pay the dâk charges, and that he not having done so, the zemindar had to undergo the expenses and to sue for the money. If that was so, and if the contract was not to pay the amount to the zemindar in the first instance, the claim could not have been regarded as one for rent and was rightly treated as one for compensation for the breach of contract.

    We do not think, having regard to the facts of the case before us, that the observations which we have just referred to can be regarded as any authority for the proposition which the learned District Judge has laid down, and for which the Respondent has contended before us.

    The learned vakil for the Respondent has, however, relied upon the case of Rutnessur Biswas v. Hurish Chunder Bose . In that case, the claim was by an ijaradar to recover a certain amount of money, which, under the terms of the dur ijara lease, was payable by the Defendant to the zemindar. And the learned Judges seem to have held that the amount sought to be recovered in the suit could not be recovered as “rent,” and could not be recovered as such, because “rent” cannot be made payable as such to a third person.

    Turning, however, to the statement of the case as given in the judgment, we do not find that the sum of money which the Defendant had to pay to the zemindar, and for which the suit was instituted, was any part of the “rent,” properly so called, reserved upon the lease. Rather it would appear, on a reference to the report of the case in p. 222, that it was not so, and the only amount that was reserved in the lease as “rent” was Rs. 127, which was not the subject-matter of the suit.

    Having regard to these circumstances, we do not think that the observations of the learned Judges that have been referred to, could be regarded as any authority in the present case. We do not understand that the learned Judges meant to lay it down as a broad proposition, and for which the Respondent has contended before us, that in every case of the kind, where a portion of the money reserved upon the lease is payable by the lessee to a third person, it cannot be regarded as “rent,” and this, irrespective of the consideration whether it is “rent,” as defined by sec. 3 of the Bengal Tenancy Act.

    Upon these considerations we are of opinion that the two items, Rs. 40-6-6 and Rs. 40, as forming part of the sum Rs. 136-6, should be regarded as “rent” payable by the Defendant.

    Turning now to sec. 10 of the Bengal Tenancy Act, under which the present suit for ejectment seems to have been brought, we find that “a holder of a permanent tenure shall not be ejected by his landlord, except on the ground that be has broken a condition on breach of which he is, under the terms of a contract between him and his landlord, liable to be ejected, provided that where the contract is made after the commencement of this Act, the condition is consistent with the provisions of this Act.” And the question is whether the condition in the putni lease as to forfeiture of the tenancy and the cancellation of the lease, is consistent with the provisions of this Act.

    Sec. 65 of the same Act provides that “where a tenant is a permanent tenure-holder, a raiyat holding at fixed rates, or an occupancy raiyat, he shall not be liable to ejectment for arrears of rent, but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon.”

    So that, according to the provisions of this section, the only remedy that the zemindar has in the case of a permanent tenure or an occupancy holding is to bring to sale the tenure or holding in execution of a decree for rent, and not to eject the lessee, where there has been a default to pay the rent reserved.

    Sec. 178(e) of the Act provides: “Nothing in any contract between a landlord and a tenant made before or after the passing of this Act, shall entitle a landlord to eject a tenant otherwise than in accordance with the provisions of this Act.” Sec. 179, which has been referred to by the learned Judge, lays down: “Nothing in this Act shall be deemed to prevent a proprietor or a holder of a permanent tenure in a permanently-settled area from granting a permanent mokurati lease on any terms agreed on between him and his tenant.”

    Whether this section qualifies the provisions of sec. 65, to which we have already referred, need not be discussed in this case; for we find it provided in sec. 195(e) that “nothing in this Act shall affect any enactment relating to putni tenures in so far as it relates to those tenures.”

    This brings us to the Putni Regulation, and to see what is the provision in that Regulation, so far as regards the question we have to decide in this case. Sec. 3 of the Regulation (VIII of 1819) in the first clause provides that “the tenures known by the name of putni taluks, shall be deemed to be valid tenures in perpetuity according to the terms of the engagements under which they are held,” and so on. And then clause 3 lays down that “in case of an arrear occurring upon any tenure of the description alluded to in the first clause of this section, it shall not be liable to be cancelled for the same, but the tenure shall be brought to sale,” and so on.

    Therefore nothing in the Bengal Tenancy Act affects the provisions of the section to which we have just referred, and it follows that the tenure of the Defendant cannot be cancelled, but it may be brought to sale by auction, at the instance of the zemindar, for default of payment of rent.

    In this view of the matter, we are of opinion that the Munsif was right in the conclusion at which he arrived, and that it was not necessary for the District Judge to have remanded the case for re-trial.

    The result is that the decree of the Appellate Court will be set aside, and that of the Court of first instance restored with all costs.

    Appeal allowed.

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    Comments

    Mohebut Ali v. Mahomed Faizullah
    (Mar 10, 1898)