KHETRAMONI DASI v. JIBAN KRISHNA KUNDU — 1920 DIGILAW 83 (SC)

Judgement Appeal from a judgment and decree of the High Court (June 9, 1916) affirming a decree of the District Judge of 24-Parganas, which reversed a decree of the Subordinate Judge (Third Court) of Alipur. The respondents were tenants of land in the Sundarbans under a permanent mukarrari lease granted in 1890 by the deceased appellant. They alleged that the land had been measured at the commencement of the tenancy, and that a large part of it had recently been washed away by a river ; they accordingly claimed a reduction of the agreed rent under s. 52, sub-s. 1 (b), of the Bengal Tenancy Act, 1885. The appellant by her written statement pleaded (inter alia) that the respondents were precluded from claiming a reduction of rent by the stipulations of the lease. The provisions of s. 52, sub-s. 1 (b), and of s. 179, which permits a landlord and tenant in certain circumstances to contract out of the Act, appear from the judgment of their Lordships. The terms of the lease are not material to the decision. The Subordinate Judge dismissed the suit upon the grounds (1.) that it could not be maintained, since all the tenants were not joined as plaintiffs, and (2.) that the terms of the lease precluded the respondents from claiming a reduction of rent upon diluviation of the land. The District Judge allowed an appeal and remanded the suit to the Subordinate Judge to determine what reduction the respondents were entitled to. He held that the suit was maintainable, since the tenants not joined as plaintiffs had been made defendants. In his opinion the terms of the lease did not clearly exclude the right to a reduction of the rent upon a permanent reduction of area ; he said moreover that the tenure being in the Sundarbans could not be held to be in a permanently settled area, having regard to s. 13 of Ben. Reg. III. of 1828, s. 13 (Ben. Reg. III. of 1828, s. 13, declares that the Sundarbans are still the property of the State, not having been permanently settled, and provides for the mak ing of grants and lease thereout, and for bringing the land into cultivation.), so as to make s. 179 applicable. An appeal to the High Court was heard in the first instance by Chatterjee and Mullick JJ. An appeal to the High Court was heard in the first instance by Chatterjee and Mullick JJ. The terms of the grant to the appellants predecessor, which sufficiently appear from the judgment of their Lordships, were not before the Court, and the learned judges understood that the appellants holding from the Government was a permanent tenure. They were of opinion that the land being in the Sundarbans it was, upon that assumption, in a permanently settled area, and that s. 179 applied. They were also of opinion that the stipulations of the lease excluded the right to a reduction, and they accordingly allowed the appeal. Upon a petition for a review, supported by an affidavit exhibiting the grant from the Government to the appellants predecessor, the learned judges ordered a rehearing of the appeal. The rehearing took place before Woodroffe and Chaudhuri JJ. who affirmed the decree of the District Judge. The former learned judge said " The question then is, first, as to the meaning of s. 52 of the Bengal Tenancy Act. The plaintiff is a tenant, and s. 52, sub-s. 1 (b), therefore is applicable to this case. The short question really before us is whether or not the plaintiff was competent to contract himself out of the fights which were given to him by that section, and if so, whether in fact he has so done. It is in the first instance to be observed that s. 52 is not made subject to any proviso. It is not, as in the case of s. 53, for instance, made subject to agreement or usage or the like. Prima facie, therefore, without reference to any further section it would be, having regard to the general scheme of the Act, a statutory right in the tenant which could not be affected by an agreement entered into by him. Then it is said that s. 178 which declares that, nothing in any contract between a landlord and a tenant shall affect the rights therein stated, does not expressly refer to the case of a tenant who is not at the same time a raiyat, for s. 178 (f) only says that nothing in any contract between a landlord and a tenant shall take away the right of a raiyat to apply for a reduction of rent under s. 38 or s. 52. As the plaintiff is not a raiyat it may be con ceded for the purpose of this judgment that s. 178 does not deal with the case which is before us.....Sect. 179 does not apply to this case, for it cannot be said that the tenure is situate in a permanently settled area within the meaning of that section. That section, however, I think, does show by implication this that though s. 178 does not expressly refer to the case of a tenure-holder yet s. 52 is not subject to agreement except as regards a particular class of tenants in permanently settled areas as dealt with in s. 179. As I have said the plaintiff does not come within that class. I would, therefore, hold that the plaintiff is entitled under the provisions of s. 52 of the Bengal Tenancy Act to a reduction of rent and that the right is a statutory right which is not subject to agreement. Even if it were, I think that much may be said on behalf of the argument that the terms of the lease are not sufficiently explicit to enable us to hold that the intention of the tenants was to contract themselves out of the right to which they would have been entitled had there been no such lease. This point however does not arise on my finding as regards the meaning of s. 52. Chaudhuri J. agreed. 1920. Nov. 10. H. N. Sen for the appellant. Upon the true construction of the lease to the respondents they had agreed that there should be no reduction of rent upon diluviation. It was open to the parties to the lease to so agree, the respondents not being raiyats but tenure holders. Even if the Government grant of 1880 was not a permanent grant, the land was held by the respondents upon a permanent tenure. Where land is so held in the Sundarbans it is in a permanently settled area for the purpose of s. 179 of the Bengal Tenancy Act, 1885 Tamasha Bibi v. Ashutosh Dhar. (( 1900) 4 Cal. W. N. 513.) [Reference was also made to Bengal Tenancy Act, s. 3, sub-s. 7, and s. 5, and Ben. Reg. I. of 1793.] De Gruyther K.C. and Kenworthy Brown for the respondents. Sect. (( 1900) 4 Cal. W. N. 513.) [Reference was also made to Bengal Tenancy Act, s. 3, sub-s. 7, and s. 5, and Ben. Reg. I. of 1793.] De Gruyther K.C. and Kenworthy Brown for the respondents. Sect. 179 of the Bengal Tenancy Act, 1885, does not apply in this case, because the land was not in a permanently settled area. It may be that an area could be a permanently settled area, although no permanent settlement of the district was made in 1793, but the terms of the grant from the Government to the appellants predecessor shows that this was not a permanently settled area. Sect. 179 not applying, the respondents, as tenants, were entitled to avail themselves of s. 52, sub-s. 1 (b). In any case the lease to the respondents does not exclude the right to a reduction of rent upon a permanent reduction of area by diluviation. [Reference was also made to Ben. Reg. III. of 1828, s. 13; Burodacant Roy v. Commissioner of Sundarbans (( 1868) 12 Moo. I. A. 225.); and Bengal Tenancy Act, 1885, s. 178.] H. N. Sen replied. Dec. 13. The judgment of their Lordships was delivered by LORD MOULTON. The suit to which this appeal relates is brought by the respondents, who are holders of a lease from the deceased appellant of land situated in the Sundarbans, with the object of obtaining a reduction of rent on the ground that a large portion of the holding has been washed away by the surrounding waters, and that the area leased has been reduced thereby to the extent of nearly a quarter. They rely on s. 52, sub-s. 1 (b), of the Bengal Tenancy Act, 1885, which enacts that " Every tenant shall be entitled to a reduction of rent in respect of any deficiency proved by measurement to exist in the area of his tenure or holding as compared with the area for which rent has been previously paid by him, unless it is proved that the deficiency is due to the loss of land which was added to the area of the tenure or holding by alluvion or otherwise, and that an addition has not been made to the rent in respect of the addition to the area." The facts of the case are not substantially in dispute, although the extent of the diminution of the area is not agreed between the parties and must be determined by measurement in the proper way. There is no doubt that there has been a diminution and no case is set up that there has been any previous increase of the holding without increase of rent so as to bring it under the latter part of the clause. The substantial defence of the appellant (whose predecessor was a grantee from the Government of the holding part of which was leased to the respondents) is that the case comes under s. 179 of the Bengal Tenancy Act, 1885, which reads as follows " 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 mukarrari lease on any terms agreed on between him and his tenant." It is contended that by the terms of the lease to the respondents they are precluded from denying their obligation to pay the full rent thereby fixed on the ground of flood or diluviation, and it is to meet a defence founded upon this provision that the plaintiffs contend that they are protected by s. 52 (b). The appellants, on the other hand, contend that they hold from the Government a permanent tenure in a permanently settled area, and therefore are excepted from the operation of s. 52 by the provisions of s. 197 above referred to. By the definition clause, s. 2, sub-s. 12, of the Act " permanent settlement " means the permanent settlement of Bengal, Behar and Orissa made in the year 1793. By the definition clause, s. 2, sub-s. 12, of the Act " permanent settlement " means the permanent settlement of Bengal, Behar and Orissa made in the year 1793. The grant from the Government to the appellants certainly does not come within that description if it be taken literally, for it was not made until December, 1880. But, apart from this, their Lordships are of opinion that the terms of the grant are not such as to render the lands to which it refers " a permanently settled area." In substance the payment to the Government is not to commence for twenty years from 1861, and is to go on at increasing rates until the expiration of 99 years, when the following clause comes into force " That after the 99th year the grant shall be liable to survey and re-settlement, and to such moderate assessment as may seem proper to the Government of the day ; the proprietary right in the grant and the right of engagement with Government remaining to the grantees, their heirs, executors or assigns, under the conditions generally applicable to the owners of estates not permanently settled ; and that revenue equal to the amount annually paid from the 51st to the 99th year shall be paid annually by the grantees, their heirs, executors or assigns, until such survey and re-settlement or re-assessment as is described above be effected." These terms are in such strong contrast with what is known as " permanent settlement " in India that their Lordships are of opinion that the appellants have failed to establish that the lands are situated in a permanently settled area. Hence they hold that s, 179 does not apply to this holding, and that the respondents are entitled to the relief which they claim under s. 52. This was the judgment of the High Court of Judicature at Fort William in Bengal from which this appeal is brought, and their Lordships will therefore humbly advise His Majesty that this appeal be dismissed with costs.