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1946 DIGILAW 6 (ALL)

Sri Bhushan v. Mst. Maina

1946-01-10

GHULAM HASAN

body1946
JUDGMENT Ghulam Hasan, J. - This is a Defendant's appeal in a suit for arrears of theka dues which has been decreed by the two Courts below. 2. The suit related to 1346 Fasli (whole) and Kharif 1347 Fasli and was based upon a Theka name executed by the Plaintiff in favour of the Defendant-Appellant. The suit was brought for recovery of Rs. 449 as rent and Rs. 20/11 as interest. The relevant defence with which I am concerned in the present appeal was that the Plaintiff did not deduct the amount of remissions to which the Defendant was entitled on account of the slump in prices in the years in suit and the floods in 1346 Fasli. The suit was filed on 8th March, 1940. The Assistant Collector disallowed the remissions and decreed the suit for rent in full. The Additional Civil Judge upheld the decree. He found that remissions had been granted to the tenants for the years in suit in respect of the land covered by the Theka but he held that the Defendant was not entitled to claim them as Sub-section (3) of Section 151 of the U. P. Tenancy Act (No. XVII of 1939) did rot apply to a Thekadar. 3. He further held that he could not claim the remissions under U.P. Regularization of Remissions Act (No. XIV of 193b) inasmuch as there was no order for remission of Theka money made by the executive authorities for the years in suit in favour of the Appellant. As regards the remissions due to floods the learned Judge again found that though these remissions were granted to the tenants u/s 123 of the U.P. Tenancy Act or Section 4 of the U.P. Rent and Revenue Relief Act (No. XVII of 1938) but no remissions were made in favour of the Thekadar. It appears that while the appeal was pending the Appellant had applied on 14th May, 1940, to the Deputy Commissioner praying for remissions. The suit by the Assistant Collector was decreed on 24th August, 1940, and as the Assistant Collector bad disallowed remissions the Deputy Commissioner apparently disposed of this matter on 26th September, 1940, in the light of that decision and consigned the same to record. The suit by the Assistant Collector was decreed on 24th August, 1940, and as the Assistant Collector bad disallowed remissions the Deputy Commissioner apparently disposed of this matter on 26th September, 1940, in the light of that decision and consigned the same to record. This order was treated by the lower appellate Court to have been passed u/s 123 of the U. P. Tenancy Act or u/s 4 of the U.P. Rent and Revenue Relief Act (No. XVII of 1938), and u/s 124 of the U. P. Tenancy Act and Section 5 of U.P. Rent and Revenue Relief Act XVII of 1938 the lower appellate Court held that it was not liable to be challenged. The lower appellate Court further added. Although it is fact that Sections 123 and 219 of the new Tenancy Act arc applicable to Thekadars, and under Schedule 6 of the New Tenancy Act, the Defendant Appellant is clearly entitled to remissions the procedure adopted by the executive authorities in this case does not permit this Court to go against the express provisions of Section 124 of the New Tenancy Act and Section 6 of Act XVII of 1938. 1 would advise the Defendant-Appellant to move D.C. Gonda once more and show that injustice has been done to him and that he has been deprived of remissions to which he was lawfully entitled under schedule 6 of the New Tenancy Act. 4. In second appeal the same question of remissions has been re-agitated before me. Having heard counsel for parties I am of opinion that the decision of the Courts cannot be maintained. 5. The U.P. Regularization of Remissions Act, 1938, received the assent of the Governor on 16th September, 1938, and was published in the U.P. Gazette on 16th September, 1938. The relevant portion of Section 2 of the Act is as follows: 2. Notwithstanding anything in the Agra Tenancy Act, 1926, or the Oudh Rent Act, 1886, or in any other law for the time being in force where rent has bean remitted on account of any fall in the price of agricultural produce which took place before the commencement of this Act, under the order of the Provincial Government or any authority empowered by it in that behalf, such order, whether passed before or after the commencement of this Act, shall not be called in question in any Civil or Revenue Court. 6. 6. It is clear from this section that whatever the rights of the parties may be under the Oudh Rent Act of 1886 (See Section 19A) there can be no doubt that where rent has been remitted on account of slump in prices under the orders of the Provincial Government or any authority empowered by it in this behalf that order, whether passed before or after the Act, shall not be questioned in any Civil or Revenue Court. It is not denied that in the present case the rent was remitted on account of fall in prices. That order most, therefore, be treated to be binding on the Courts. 7. The effect of this section, therefore, is that the rent remitted cannot be realised by the landlord. Section 151 of the U.P. Tenancy Act, 1939, has no application to the present case. That section authorises a Court passing a decree in a suit for arrears of rent to allow remissions after taking the sanction of the Collector whenever it is satisfied that the area of land has been decreased by deluvion or otherwise or the produce has been diminished by some natural clarity as the floods and the full rent cannot be equitably decreed. The order of the Collector giving or refusing sanction to remission of rent is not liable to be questioned in any Civil or Revenue Court. Further this section has been expressly made inapplicable to a Thekadar under Sub-section (3). The Appellant does not claim remission of rent under this section. His contention is that the right of the landlord to realise the full rent is negative by Section 2 of the U.P. Regularization of Remissions Act, 1938, and he cannot claim the rent which has been remitted on account of the slump in prices. I am of opinion that this contention is well-founded. Section 2 makes no reference to a tenant or a Thekadar, and I can see no ground why the landlord should be held disentitled to claim from a tenant the rent remitted by the Government but should be entitled to claim the rent remitted from a Thekadar. The position of a Thekadar is no better than that of a Collector of rent from the tenants. I hold, therefore, that the Appellant is entitled to the remission in rent on account of the slump in prices. 7. The position of a Thekadar is no better than that of a Collector of rent from the tenants. I hold, therefore, that the Appellant is entitled to the remission in rent on account of the slump in prices. 7. As regards the remission due to floods Section 4 of the U.P. Rent and Revenue Relief Act, 1938, lays down: (1) On the occurrence of an agricultural calamity affecting the crops of any mahal or portion of a mohal the Provincial Government or any authority empowered by it in this behalf may, in accordance with the provisions of the schedule remit or suspend for any period the whole or any portion of the rent of any holding affected by such calamity whether such holding is held mediately or immediately from the landlord. (2) When the Provincial Government or any authority empowered by it in this behalf, remits or suspends rent under the provisions of Sub-section (1), it shall in accordance with the provisions of the schedule remit or suspend for a like period the whole or any portion of the revenue assessed on such mahal. 8. u/s 5 an order passed u/s 4 cannot be questioned in any civil or revenue Court nor can a suit lie for the recovery of any sum the payment of which has been remitted u/s 4. Para 2 of the schedule referred to in Section 4 says that The relief in rent payable by under-proprietor, permanent lessee, permanent tenure holder for thekadar shall be calculated in accordance with the provisions of paragraph 1 and paragraph 3 as if the rent payable by such under proprietor, permanent lessee, permanent tenure-holder or thekadar were revenue and as if the rent payable to such under-proprietor, permanent lessee, permanent tenure-holder or thekadar, were payable to the landlord. 9. Section 123 of the U.P. Tenancy Act, 1939, is a verbatim reproduction of Section 4 of the U.P. Rent and Revenue Relief Act, 1938 except that the reference in it is made to sixth schedule. Section 124 is similarly a reproduction of Section 5 of the U.P. Rent and Revenue Relief Act, 1938. Para 3 of the sixth schedule is exactly the same as para 2 of the schedule of the U.P. Rent and Revenue Relief Act, 1938. There can be no doubt that the provisions of these Acts fully entitle the Appellant to the benefit of the remissions. Para 3 of the sixth schedule is exactly the same as para 2 of the schedule of the U.P. Rent and Revenue Relief Act, 1938. There can be no doubt that the provisions of these Acts fully entitle the Appellant to the benefit of the remissions. While Section 2 of the U.P. Regularization of the Remissions Act, 1938, did not expressly mention a Thekadar, he is so mentioned in these provisions. 10. Section 219 of the U.P. Tenancy Act, 1939, applies the provisions of Sections 123 and 124 to a Thekadar in the same way and to the same extent as they apply to a hereditary tenant. 11. The view of the Courts below that the Thekadar did not expressly obtain an order of remission from the Collector cannot be a ground for not granting him a relief open to him under the provisions of the aforesaid Acts. I attach little importance to the order of the Collector refusing remission as he merely proceeded upon the judgment of the Sub-divisional Officer. The lower appellate Court while recognising that relief was permissible to the Appellant wrongly thought that it was powerless to grant it in view of the fact that Collector had refused the remissions. To refuse relief to Appellant in respect of the remissions both on account of slump in prices and on account of agricultural calamity such as floods would be to defeat the very object of the Acts of 1938 which were passed with the express purpose of affording relief. The decision of the Courts below on this point must be set aside. 12. I allow the appeal and modify the decree of the lower appellate Court by allowing the remissions claimed by the Appellant. The Appellant will get his proportionate costs in all the Courts.