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Case Number

Special Appeal No. 2216 of 1862

Judges

Sir Barnes Peacock
Kt.
Chief Justice
Mr. Justice Steer
Mr. Justice Norman
Mr. Justice Kemp
Mr. Justice Seton-Karr

Acts

section 5, Regulation IV of 1794, and sections 9 and 10, Regulation V of 1812.
provisions of clause 1, section 23 of Act X of 1859,
Act X of 1859. Sections 2, 3, and 5 of that Act
clause 1, section 23, Act X of 1859,
section 13 of Act X of 1859,
section 13, Act X of 1859,
Sections 30, 31, 32, and 33

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The formal facts are noted at the outset to "appear in the judgments of the Court." The opinion records that the case before the Full Bench concerned a suit to fix the rental of one kani and 12 gaudas of land at the Chowallah rates and to obtain a kabuliat from the defendants. The plaintiff alleged that the land had been secreted by the defendant at the time of a survey and partition. The plaintiff obtained a decree for possession from the Moonsiff dated 16 May 1860, was put into possession on 16 Bhadro (September 1860), and instituted the present suit on 16 September (year as in the record). The trial Judge gave the plaintiff a decree for a kabuliat at Rs. 3 per kani.

Procedurally, the principal question was referred to a Full Bench: whether a suit for a kabuliat under clause 1, section 23 of Act X of 1859 can be maintained without a previous notice under section 13 of the same Act. The Full Bench heard multiple judgments (Kemp, C.J. Peacock, Norman, Steer, Seton-Karr) addressing that question and related points arising from the particular facts (including whether the defendant was a trespasser or tenant).

Legal Issues Presented

Whether a suit for a kabuliat under clause 1, section 23 of Act X of 1859 will lie without previous notice under section 13 of the same Act (i.e., whether a landlord may sue for a kabuliat at an enhanced rent without first giving notice of enhancement).
Whether, as an incidental matter on the facts before the Court, a zemindar (landholder) can sue for a kabuliat under Act X of 1859 against a person who is a mere trespasser rather than a tenant.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Goorsoonder Chowdhry v. Meenoo Shaha	Authority (Sudder Court decision) indicating that when a suit is brought under clause 1, section 23 of Act X of 1859 for delivery of a kabuliat, no prior notice under section 13 is required.	Relied on by Kemp J. and Seton-Karr J. as supporting the position that no section 13 notice is necessary for a kabuliat suit; treated as precedent consistent with allowing such suits without prior notice.
Eshan Chunder Roy v. Mahomed Noorbux	Another Sudder Court decision aligning with the view that a suit under clause 1, section 23 for delivery of a kabuliat does not require prior notice under section 13.	Relied on by Kemp J. and Seton-Karr J. as supporting the proposition that a kabuliat suit itself suffices and that section 31 contemplates suits during tenancy without prior notice.
Ishore Ghose v. James Hills	Remarks by Sir Barnes Peacock cited as supportive of the view that no prior section 13 notice is necessary in a kabuliat suit (as used by Kemp J.).	Kemp J. cites the remarks of the learned Chief Justice in this case as supportive authority for his conclusion that no notice under section 13 is necessary for a kabuliat suit brought under clause 1, section 23.
Gumani Kazi v. Harihar Mookerjee	A Full Bench decision holding that in a suit for enhancement, if a mokurrari patta is set up and found genuine, the Court cannot determine the rates unless notice of enhancement under section 13 has been given.	Norman J. treats this Full Bench decision as dispositive for the proposition that notice under section 13 is required before a court can determine enhanced rent, and he relies on it to conclude generally that suits for enhanced kabuliat without prior notice cannot be maintained.
Hamatoolah Daffadar v. Gunga Gobind Roy	Judgment of Sir Barnes Peacock and L.S. Jackson relied on by Norman J. as consistent with his construction that the right to obtain a kabuliat at enhanced rent is subject to the notice requirement of section 13.	Norman J. states his opinion accords with this judgment. Seton-Karr J. notes that the Hamatoolah case "ended in a remand" and expresses the view that it is not conclusively determinative of the present matter.

Court's Reasoning and Analysis

Kemp, J.

Kemp frames the material question as whether a kabuliat suit under clause 1, section 23 of Act X of 1859 lies without previous notice under section 13. He concludes that no such notice is necessary. His reasoning emphasizes existing Court decisions (citing Goorsoonder Chowdhry and Eshan Chunder Roy) supporting that when a suit is brought under clause 1, section 23 for delivery of a kabuliat, no section 13 notice is required. He explains that landholders (zemindars) have rights under the Act including the right to receive a kabuliat; suits for delivery of kabuliats and determination of rent are cognizable only by the Collector under the Act (and the Collector is guided by section 5 in determining the rent). He points to section 31, which provides that such suits may be instituted at any time during the tenancy, as indicating that no prior seasonal notice (as required for enhancement under section 13) is necessary for a kabuliat suit. He also cites the remarks of Sir Barnes Peacock in Ishore Ghose v. James Hills as support, and would confirm the decision of the lower Appellate Court.

Peacock, C.J.

The Chief Justice addresses the facts and reaches a disposition based on the factual characterisation of the defendant: he holds that as against the plaintiff the defendant was a mere trespasser and not a tenant. Therefore, in his view, the plaintiff could not sue the defendant to obtain a kabuliat under Act X of 1859. He therefore concludes the decisions of the Court below must be reversed. Peacock CJ does not fully engage the statutory construction question that preoccupied other members of the Bench because he disposes of the matter on the factual ground of trespass versus tenancy.

Norman, J.

Norman agrees with the Chief Justice's factual disposition (that the defendant was a trespasser and thus the zemindar could not sue under Act X against a trespasser), but he disagrees with several colleagues on the principal statutory question. He provides an extensive statutory-construction analysis:

A patta and a kabuliat are in substance a written statement of the terms of tenancy; there is no common-law obligation to reduce an agreement to writing, so the right to a kabuliat must be created by statute.
He locates the right to a kabuliat in section 9 of Act X of 1859, reading that section to require that the terms of the holding be settled and a patta embodying those terms must actually be tendered to the ryot before the landlord acquires the right to call on the ryot to give a kabuliat.
He treats section 23 as providing the tribunal (the Collector) for disputes under that right, while sections 30–33 regulate limitation. He argues section 31 (allowing suits at any time during tenancy) is a mere limitation clause and was not intended to enlarge the substantive right created by section 9.
He emphasises the protective purpose of section 13 (no ryot liable to pay higher rent for the previous year unless written notice served) and argues that allowing kabuliat suits at enhanced rent without prior notice would deprive ryots of those protections previously secured under earlier regulations.
He regards the Full Bench decision in Gumani Kazi v. Harihar Mookerjee (that a court cannot determine enhanced rates unless notice under section 13 has been given) as concluding the present statutory question in favour of requiring notice.
He rejects treating a suit as substitute for the statutory notice: a suit is not the notice legislature prescribed, and treating it as such would require suits to be instituted prematurely and would impose expense and harassment on ryots.

Norman nevertheless agrees that in the present case the suit before the Court was one for assessment where no rent had ever been paid (and not a suit for enhancement of an existing tenancy), so he agrees that no section 13 notice was necessary for the specific relief sought in this case; hence the question is not of great practical importance for the present matter.

Steer, J.

Steer indicates that the only point argued before the Full Bench was whether notice of enhancement was necessary before an action for a kabuliat could be entertained. He declines to reopen contentious factual questions about trespass without further argument, notes that the parties themselves admit the existence of the tenancy, and then addresses the legal point presented. He concludes that a notice under section 13 is not necessary to sustain an action for determination of rent and for a kabuliat. His statutory reading is practical: where a landlord brings a suit to determine prospective rent and obtain a kabuliat, the suit itself more effectively performs the function of a notice. He does accept the narrow proposition that where a landlord claims enhanced rent retrospectively (i.e., for a prior year) he is bound to show that notice under section 13 was issued and cannot obtain enhanced rent prior to the suit without it. Applying his views, he would uphold the decision of the Lower Court and dismiss the special appeal with costs.

Seton-Karr, J.

Seton-Karr expressly frames the referred question as whether a landlord is entitled to receive a kabuliat from a tenant without issuing notice of enhancement under section 13 and whether such an action will lie without the issue of such a notice. He concurs with Kemp and Steer that such a suit will lie without prior notice. He finds the Sudder Court decisions in Goorsoonder Chowdhry and Eshan Chunder Roy sound on law and justice. He reasons that the suit is itself the best possible notice of a demand for enhancement, that Act X does not expressly require a prior notice before instituting such a suit, and that section 31 contemplates suits during the tenancy. He also rejects the finality of Hamatoolah Daffadar v. Gunga Gobind Roy (noting it ended in a remand) as conclusively settling the matter. He would affirm the decision of the lower Appellate Court without alteration.

Holding and Implications

Holding: The Full Bench did not speak with a single unanimous voice on the principal statutory question, but a majority of the judges (Kemp J., Steer J., and Seton-Karr J.) concluded that a suit for a kabuliat under clause 1, section 23 of Act X of 1859 may be instituted without a prior notice of enhancement under section 13, and would affirm the decision of the lower Appellate Court. Chief Justice Peacock and Norman J. would have reversed on the separate factual ground that the defendant was a trespasser (not a tenant), and Norman J. separately concluded as a general matter that suits to obtain kabuliats at an enhanced rent cannot be maintained without prior notice under section 13 (though he agreed the specific present suit — an assessment where no rent had ever been paid — did not require notice).

Implications:

Direct effect on the parties: the judges forming the majority would affirm the lower Appellate Court's decision (i.e., leave the lower court decree for a kabuliat in place). One judge (Peacock, C.J.) and one other (Norman, J., on the trespass point) would have reversed on the ground that the defendant was merely a trespasser and not a tenant, precluding a claim under Act X. The record therefore reflects a divided Full Bench with the practical consequence that the lower Appellate Court's decree is sustained by the majority.
On the substantive law: the Bench is divided. A majority view supports the proposition that a kabuliat suit under clause 1, section 23 may be brought without previously giving notice under section 13, on the basis that the suit itself effectively performs the notice function and section 31 contemplates suits during the tenancy. A notable minority (Norman J.) takes the opposite view for enhanced rents, holding that the statutory scheme (sections 9 and 13 read together with other provisions) requires tender of a patta and that notice under section 13 is a prerequisite to determining enhanced rent in litigation.
No single, unanimously expressed Full Bench precedent on the point: the opinion records both majority and minority reasoned positions; practitioners should note the split of authority within this Full Bench and the reliance by different judges on prior Sudder Court authorities and on a Full Bench decision (Gumani Kazi) which Norman regards as concluding the question in favour of requiring notice.

Note: The summary above is restricted to and faithful to the materials and statements present in the provided opinion and does not add facts or outcomes beyond those expressly recorded in the text.

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Ram Kanth Chowdhry v. Bhubun Mohun Biswas

The Facts of the case and the point referred appear in the judgments of the Court.

Kemp, J.:— The material point for a consideration in this reference is, whether a suit for kabuliat, under the provisions of clause 1, section 23 of Act X of 1859, will lie, without previous notice under section 13 of the same Act.

I am of opinion that no such notice is necessary. This point, I observe, has already been before the Court, and six Judges have concurred in opinion that when a suit is brought under clause 1, section 23, Act X of 1859, for delivery of a kabuliat, no notice is required, — see Goorsoonder Chowdhry v. Meenoo Shaha(1) before Raikes, Bailey, and Steer, JJ., on the 29th May 1862, and Eshan Chunder Roy v. Mahomed Noorbux(2), before Trevor, Kemp, and Seton-Karr, JJ., on the 26th June 1862. Landholders have their rights under the Act as well as ryots, and among these rights is the right to receive a kabuliat or counterpart of the patta. A suit for the delivery of a kabuliat, and for the determination of the rate of rent at which such kabuliat is to be delivered, is cognizable by the Collector, and by no other Court, The Collector, in determining the rate of rent at which such kabuliat is to be delivered, will be guided by the provisions of section 5 of Act X. Again, section 31 of the Act says that suits for the delivery of kabuliats, and for the determination of the rent at which such kabuliats are to be delivered, may be instituted at any time during the tenancy, thus clearly contemplating that no previous notice, which if the suit be for enhancement of rent must be given at a particular season of the year, is necessary in a suit for a kabuliat. It is true that “no ryot is liable to pay any higher rent for the previous year, unless a written notice shall have been served upon him”(section 13); but this section does not enact that a suit for a kabuliat and determination of the rate, which must be fair and equitable (section 5), at which such kabuliat is to be delivered, cannot be heard and decided without notice under section 13. I am supported in the above opinion by the remarks of the learned Chief Justice Sir Barnes Peacock, in the case of Ishore Ghose v. James Hills. I would confirm the decision of the lower Appellate Court.

Peacock, C.J:— This is a suit to fix the rental of one kani and 12 gaudas of land at the Chowallah rates, and for obtaining a kabuliat from the defendants. The plaintiff alleges that this land having been secreted by the defendant at the time of a survey and partition, he instituted a suit for possession, and got a decree from the Moonsiff on the 16th of May 1860, under which he was put into possession on the 16th Bhadro (September 1860). This suit was instituted on the 16th September. The Judge gave the plaintiff a decree for a kabuliat at Rs. 3 per kani.

As against the plaintiff, the defendant was a mere trespasser, and not a tenant, and therefore the plaintiff could not sue him to obtain a kabuliat under Act X of 1859. The question, whether as against his tenant a zemindar can sue for a kabuliat at an enhanced rent without giving notice of enhancement, does not arise. I think that the decisions of the Court below must be reversed.

Norman, J.:— I entirely agree with the judgment of the Chief Justice. But as this case was submitted for the purpose of obtaining the opinion of a Full Bench upon the question whether a zemindar who has not given notice of enhancement under section 13, Act X of 1859, can maintain a suit for a kabuliat at an enhanced rent, upon which there are conflicting decisions, and as my learned colleagues have given judgments upon the point, in which I regret to say I cannot concur, I feel bound to state the reasons upon which my conclusion that such suits cannot be maintained is based.

A patta and a kabuliat are simply a lease and counterparts; in other words, a written statement of the terms of the tenancy. Now, there is no common-law obligation binding any man to put his agreement into writing, and therefore the right to a kabuliat is one which can only be founded on some express enactment. After the passing of Regulation V of 1812, on the 4th September 1816, by construction 257 the Sudder Court pointed out that that Regulation contained no provisions for a summary suit to compel ryots to take pattas and give kabuliats, and that landholders (as against tenants refusing to take pattas or give kabuliats at enhanced rates), might proceed in conformity with section 5, Regulation IV of 1794, and sections 9 and 10, Regulation V of 1812. I believe it is admitted that if the right exists at present, it must be founded on Act X of 1859. Sections 2, 3, and 5 of that Act give to ryots the right to demand pattas under certain circumstances. The right of landholders to demand a kabuliat is created by section 9, which is as follows:—

“Every person who grants a patta is entitled to receive, from the person to whom the patta is granted, a kabuliat, or counterpart engagement, in conformity with the terms of the patta. The tender to any ryots of a patta, such as a ryot is entitled to receive, shall be held to entitle the person to whom the rent is payable to receive a kabuliat from such ryot.”

Then, upon the plain language of this section, it seems to me clear that the terms of the holding must be settled, and a patta embodying such terms must be drawn up, and actually tendered to the ryot before the landlord can acquire a right to call on the ryot to give a kabuliat; or, in other words, execute the counterpart of the patta tendered to him. It is needless to point out how reasonable and natural is this order of proceeding. Such being the right as created by the Act, section 23 Joes no more than provide a tribunal before which alone disputes relating to such right are to be litigated; and under that section, if the patta tendered and the kabuliat demanded are for an enhanced rent, the Collector may, of course, determine whether notice of enhancement has been duly given, or whether the rent named in the patta tendered is fair and equitable. Sections 30, 31, 32, and 33 are simply clauses regulating the period of Limitation for suits under the Act. Section 31 provides that suits for the delivery of pattas or kabuliats, or for the determination of the rates of rent at which they should be delivered, may be instituted at any time during the tenancy, — that is to say, any rights which the parties may have with reference to such matters may be enforced, not merely in the first or second year, but at any time while the relation of landlord and tenant continue to exist.

There is nothing which leads me to infer that section 31, a mere limitation clause, was intended to give any rights inconsistent with or larger than those created by section 9. The question is important, because, if a suit for a kabuliat at an enhanced rate can be maintained without first giving to the ryot notice of enhancement under section 13, the ryot would be deprived of the privileges secured to him by section 13 of Act X, and which he formerly possessed under sections 9 and 10, Regulation V of 1812.

A Full Bench of this Court has decided in Gumani Kazi…Defendant; v. Harihar Mookerjee…Plaintiff.* that, in a suit for enhancement, if a mokurrari patta is set up, which the Court find out to be genuine, though the Court may declare the tenure liable to enhancement, it cannot proceed to determine what the rates shall be, unless notice of enhancement under section 13 has been given. That decision seems to me to conclude the present question.

It is suggested that, treating the suit as equivalent to notice under section 13, the kabuliat might be made applicable to a period commencing with the year ensuing that in which the plaint was filed. But a suit is not the notice which the Legislature has prescribed; and if it were construed equivalent (a species of interpretation which I do not think legitimate), the suit would be instituted before the cause of action bad arisen, and ryots would not only be put to needless expense, but would be liable to be harassed by a litigation as to what should be the terms of an agreement into which they might never choose, or even never like to cuter. These considerations confirm me in the opinion that the construction I put on the several clauses of the Act referred to by my learned colleagues, is correct.

My opinion is in accordance with the judgment of Sir Barnes Peacock and Mr. Justice L.S Jackson, in Hamatoolah Daffadar v. Gunga Gobind Roy.

I agree with the Judge of the Court below that, in this case, which was a suit for assessment of rent where no rent has ever been paid, and not for enhancement, no notice for enhancement was necessary under section 13 of Act X; and therefore the question, whether the plaintiff is entitled to a kabuliat as well as to a decree assessing a rent on the land, is not of great importance in the present case.

Steer, J.:— The only point argued before the Full Bench which heard this case, was whether a notice of enhancement was necessary before an action for a kabuliat could be entertained. Whether such a question properly arose or not, could not now be determined without a re-opening of the case, and without hearing counsel on that point; and whatever my views might be on the doctrine of trespass which my learned colleagues, the Chief Justice and Mr. Justice Norman, have held to apply to this case, I could not take upon myself to decide that point without hearing argument upon it. But both the parties to this suit admit the existence of the tenancy, and I see no reason to raise a contention which they have not thought fit to raise. Regarding the defendant as a tenant, I hold upon the only argument upon which we were called upon to decide, that a notice under section 13, Act X of 1859, is not necessary to sustain an action for the determination of rent and for a kabuliat. Such a suit, it is clear from the wording of section 3, will lie, and it is nowhere said that the suit will not lie unless the preliminary measure of issue of notice has been complied with. Where a landlord claims rent at an enhanced rate, he is bound to show that he has issued the notice prescribed in section 13, and without it he cannot obtain any enhanced rent prior to the institution of his suit brought to enforce his claim to enhancement. But where a suit is brought to determine the prospective rent, and to obtain a kabuliat after determination of rent, the provision of the law which requires the issue of a notice is supererogatory and superfluous, for the action does more effectually what the notice is designed to do, — viz., to advertise the tenant that his landlord expects in future an enhanced rent from him. No doubt, in some cases, a tenant might be prejudiced by a suit being brought against him without the issue of a notice. He would be prejudiced by having to defend a suit where, perhaps, he had no objection to offer to the claim of enhanced rent; but that is not the case in the suit before us, and if it had been the case that a mere notice would have obtained what the action has done, complete relief might have been afforded to the defendant by all the costs of the suit being thrown on the landlord.

In this view, I would uphold the decision of the Lower Court, and dismiss the special appeal with costs.

Seton-Karr, J.:— The question which has been referred for a decision to a Full Bench, in this case, is whether a landlord is entitled to receive a kabuliat from a tenant without issue of notice of enhancement, under section 13 of Act X of 1859, and whether such an action will lie without the issue of such a notice.

I concur with Mr. Justice Kemp in thinking that such a suit will lie, and that no previous issue of notice in such a case is necessary. The decisions of the late Sudder Court iu Goorsoonder Chowdhry v. Meenoo Shaha and Eshan Chunder Roy v. Mahomed Noorbux, seem to be founded on law and justice. The suit, from its very nature, is the very best possible notice of a demand of enhancement. It is nowhere stated in Act X that such a suit must he preceded by a notice. It is expressly provided that such a suit (section 31) may he instituted at any time during the tenancy, and if a landholder chooses rather to bring his tenant into Court at once, and there to settle the question of enhancement, which rarely, if ever, is determined without a formal litigation on the subject, I do not see what there is in law to prevent his following this course. The case of Hamatoolah Daffadar v. Gunga Gobind Roy(3) relied on by Mr. Justice Norman, ended in a remand; and I do not hold the matter now before us to have been conclusively settled by that judgment. Neither can I see any inconsistency in decreeing enhanced rents only from the commencement of the next Bengalee year, or after the end of the month of Chaitra following the decision of the suit in question.

The claim to rent or to enhanced rent is a cause of action which may exist or recur at any time. It is the zemindar's right, and does not commence only with the end of Chaitra in each year. The mention of this month in section 13 is designed for the protection of the ryot; and this protection of the latter will he effectually secured, if the enhanced rent be denied against him only from the termination of the month in question; due notice of the same having been served on him either by the process described in the latter part of section 13, or by the more formal, precise, and certain method of a suit in a competent Court.

It would seem to be hard on the zemindar to rule that a Collector, on an application on plain paper by a landholder, may notify a demand of enhancement to the ryot, hut that the same official, when the same demand is preferred on stamped paper, and with more formality, is not competent to notify to the ryot, that enhanced rent will be demanded from him; the enhancement in either case running from the commencement of the next year. Holding these views, I would affirm the decision of the lower Appellate Court without alteration in any way.

Ram Kanth Chowdhry v. Bhubun Mohun Biswas

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ram Kanth Chowdhry v. Bhubun Mohun Biswas

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