Bharat Mandal v. Munshi Dabiruddin Sardar — 1947 DIGILAW 104 (CAL)

JUDGMENT G.N. Das, J. - These appeals are on behalf of the Defendants. They arise out of suits for recovery of rent for the Chait kist of 1345 B.S. and for the four kists of 1346 B.S. The Plaintiffs' case was that mere was a temporarily settled estate in the District of Khulna which was let out to certain tenure-holders. The estate was re-settled in the year 1925 with some of the original proprietors and certain other strangers. The Defendants held the disputed tenancy under these tenure-holders. The temporarily settled estate was sold for arrears of revenue, the latest date of payment of these arrears being March 20, 1939. The sale took place on the 9th of December, 1939, and the Plaintiffs were the purchasers at the revenue sale. Thereafter the plaintiffs got possession through the Collector, and the Plaintiffs' case is that in March, 1940, the Plaintiffs served requisite notices on the intermediate tenure-holders and also verbally exercised their option to annul these tenures in the presence of the tenure-holders. The Plaintiffs allege that by their act the intermediate tenures were effectively annulled and they are entitled to recover rent from the tenant-Defendants for the period in suit. The tenant-Defendants filed written statement alleging that there was no relationship of landlord and tenant between the Plaintiffs and the Defendants because the intermediate tenures were not legally annullable and in point of fact they had not been annulled. 2. The trial Court dismissed the Plaintiffs' suit on the ground that the intermediate tenures were not annullable. The Plaintiffs preferred appeals to the lower Appellate Court. The lower Appellate Court has held that the intermediate tenures were annullable and in point of fact they had been validly annulled and the Plaintiffs are entitled to claim rent from the tenant-Defendants from the date following the latest day of payment, i.e., the 20th of March, 1939. In this view the lower Appellate Court has decreed the Plaintiffs' suit. The tenant-Defendants have preferred these appeals to this Court. 3. Mr. Jajneswar Majumdar appearing for the tenant-Defendants contends in the first place that the intermediate tenures came within Exception 2 to sec. 37 of the Revenue Sale Law (Act XI of 1859), and as such they were not legally annullable. The tenant-Defendants have preferred these appeals to this Court. 3. Mr. Jajneswar Majumdar appearing for the tenant-Defendants contends in the first place that the intermediate tenures came within Exception 2 to sec. 37 of the Revenue Sale Law (Act XI of 1859), and as such they were not legally annullable. In the second place he contends that the evidence of annulment which was adduced by the Plaintiffs is not very definite and on the evidence on record it cannot be said that there was a definite election on the part of the Plaintiffs to annul these intermediate tenures. He, therefore, contends that the existence of these intermediate tenures precludes the Plaintiffs from recovering rent from the tenant-Defendants. In the third place, he contends that even assuming that the Plaintiffs had exercised their option of annulling the intermediate tenures, the Plaintiffs will be entitled to get rent from the tenant-Defendants not from the date following the latest day of payment but from the date of the exercise of the option, and as in this case there is no definite proof when the option was exercised the Plaintiffs cannot recover the whole of the rent claimed. 4. Mr. Sen appearing for the Respondents has taken a preliminary objection that Second Appeals Nos. 569 and 570 are incompetent He has also contested the points raised by Mr. Majumdar, in support of his appeal. 5. I shall now deal with the first contention raised by Mr. Majumdar. The temporarily settled estate was situated, as I have said, in the permanently settled District of Khulna, and it was sold on account of its own arrears; as such, the rights of the purchaser at the revenue sale will be governed by the provisions of sec. 37 of the Revenue Sale Law (Act XI of 1859). The purchaser at such a sale acquires the entire estate free from all encumbrances which may have been imposed on it "after the time of the settlement," and is entitled to avoid and annul all under-tenures with the exceptions mentioned in that section. One of the exceptions on which reliance is placed on behalf of the Appellants is Exception 2 which protects tenures existing "at the time of the settlement" which have not been held at fixed rent. Mr. One of the exceptions on which reliance is placed on behalf of the Appellants is Exception 2 which protects tenures existing "at the time of the settlement" which have not been held at fixed rent. Mr. Majumdar contends that in the present case the time of the settlement is to be taken to be the year 1925 when the temporarily settled estate was re-settled with some of the old proprietors along with some strangers. In my opinion this contention is not correct. It has been pointed out in the case of Koowar Singh v. Gour Sundar Pershad Singh ILR 24 Cal. 887 (1897) that the word "settlement" does not refer to the permanent settlement of Bengal but refers to the particular settlement of contract with the Government by which revenue was assessed upon the estate whenever that might have been made. In that case the estate had been permanently settled at the time of the permanent settlement. At a later date there was a partition of the estate and the revenue payable in respect thereof was apportioned among the different co-sharers. It was held that the "settlement" there could not be taken to be the date when the revenue was apportioned among the co-sharers but should be taken to be the permanent settlement when revenue was imposed for the first time upon the estate. To the same effect is the decision in the case of Mokbul Ali Sadagar v. Basarat Ali 34 C.L.J. 485 (1921) which laid down that the word "settlement" did not mean the permanent settlement of Bengal but the particular settlement by which revenue was assessed upon the estate. In that case a Bajeapti Taluk had been created. It was held that the creation of the Bajeapti Taluk must be taken to be the date of the settlement and not the date of the permanent settlement of Bengal. In the case of Nilima Prava Dutta v. P.S. Mantosh 42 C.W.N. 864 (1938) a temporarily settled estate was created in the year 1882. There was a subsequent settlement in 1928 and a further re-settlement in 1931. In 1895 a tenure was created by the then settlement-holders. A question arose whether for the purposes of Exception (2) the date of the settlement must be taken to be the year 1882 or the year 1931. There was a subsequent settlement in 1928 and a further re-settlement in 1931. In 1895 a tenure was created by the then settlement-holders. A question arose whether for the purposes of Exception (2) the date of the settlement must be taken to be the year 1882 or the year 1931. It was held by this Court that although in the last settlement the tenures had been altered from those of the earlier settlement when revenue was first assessed, nevertheless the date of the settlement must be taken to be the year 1882 because the continuity of the estate must be taken to have subsisted through all the re-settlements. In the case of Aptabuddin Howladar v. Abual Kasem 45 C.W.N. 851 (1941) at the re-settlement of the temporarily settled estate the revenue and the area of the estate had both varied. It was decided by Mukherjea, J., that the date of the settlement must be taken to be the original date when revenue was first assessed on the estate and not the later settlements which had followed. It is true that Roxburgh, J., did not base his judgment on this ground. The learned Judge did not dissent from the view taken by Mukherjea, J., in that case. 6. In my opinion, it is abundantly clear from the above resume of case-law that if the continuity of the estate had been maintained all through, the date of the settlement must be taken to be the date when the revenue was first assessed upon the temporarily settled estate. The assessment is made upon the land. The mere fact that in this present case the identical land had been assessed to higher revenue or settled with some of the old proprietors and some strangers, does not affect the continuity of the estates. The estate was first assessed to revenue long before the creation of the intermediate tenures in the present case and it must be held that these tenures were not existing at the date of the estate which was sold for arrears of revenue and purchased by the Plaintiffs. 7. The result, therefore, is that on the facts of the present case the intermediate tenures must be held to be annullable. 8. The question next arises as to whether the second contention raised by Mr. Majumdar is correct or not. 7. The result, therefore, is that on the facts of the present case the intermediate tenures must be held to be annullable. 8. The question next arises as to whether the second contention raised by Mr. Majumdar is correct or not. In order to deal with this contention it is necessary to state the position of a purchaser at a revenue sale vis-a-vis the intermediate tenure-holders. Sec. 37 of the Revenue Sale Law entitles the purchaser at the revenue sale to annul and to avoid all under-tenures. It has been pointed out by their Lordships of the Judicial Committee in the case of Turner Morrison & Co., Ltd. v. Monmohan Chowdhury L.R. 58 I.A. 440 : S.C. 38 C.W.N. 29 (1931) that the intermediate tenures do not automatically fall through but the purchaser has to exercise his option to annul the under-tenures. The mode of annulment is not, however, prescribed by the Act. In the case of Sahodra Mudiali v. Nabin Chand Poral 19 C.W.N. 1030 : s.c. ILR 42 Cal. 638 (1914) it was pointed out that the purchaser may annul an under-tenure by any suitable means. A formal notice is not necessary but the election to avoid the under-tenure must be brought to the knowledge of the tenure-holders. Similarly in the case of Sm. Krishna Kalyani Dasi v. R. Braunfield 20 C.W.N. 1028 (1925), it has been held that all that is necessary is to notify to the incumbrancer the intention to annul by some unequivocal act. In the present case the lower Appellate Court has found that the Plaintiffs issued registered notices to the intermediate tenure-holders and also expressed their intention to annul those tenures in the presence of the tenure-holders. The effect of the finding is that there was an unequivocal declaration of intention on the part of the purchaser at the revenue sale to annul the under-tenures and such declaration was made with the latter's knowledge. The second contention raised by Mr. Majumdar accordingly fails. 9. The third contention raised by Mr. Majumdar has substance behind it and has to be partially given effect to. It has been pointed out in the case of Turner Morrison & Co., Ltd. v. Monmohan Chaudhury L.R. 58 I.A. 440 : s.c. 36 C.W.N. 29 (1931) that so long as the purchaser does not unequivocally exercise his option to annul the under-tenures, the under-tenures subsist. Majumdar has substance behind it and has to be partially given effect to. It has been pointed out in the case of Turner Morrison & Co., Ltd. v. Monmohan Chaudhury L.R. 58 I.A. 440 : s.c. 36 C.W.N. 29 (1931) that so long as the purchaser does not unequivocally exercise his option to annul the under-tenures, the under-tenures subsist. There is no privity of contract between them and the purchasers. The purchaser cannot either claim rent from the tenants, holding under the tenure-holders or eject them so long as he does not annul the intermediate tenures. In the present case the purchaser did not exercise the option to annul the under-tenures till March, 1940. It appears from the records mat registered notices were issued in the month of March, 1940. In his evidence, which is uncontradicted, the Plaintiff No. 1 stated that he issued these notices and also informed the tenure-holders verbally. The Plaintiff was not cross-examined by the Defendants as to the exact date when he told the tenure-holders about his intention to annul the tenures. Mr. Majumdar contends that as this evidence is indefinite as to the date when the purchaser orally informed the tenure-holders and as they did not prove that the option was exercised before the period in suit, the Plaintiffs must fail. In my opinion, the point which has been raised in this Court was not urged in either of the Courts below, and it is obvious that the parties took it that the intention to annul by an oral declaration synchronised with a date when the notices were issued. I think, therefore, that on the facts of this case it must be taken that the intention to annul was made in the month of March, 1940. The intermediate tenures, therefore, came to an end in March, 1940. The Plaintiffs would accordingly be entitled to get rent which fell due after that date. In other words, the Plaintiffs would be entitled to claim rent only for Chaitra Kist of 1346 B.S. This view is in accordance with the decision in the case of Jitendra Nath Mandal v. Dr. Jahar Lal Das 50 C.W. N. 37 (1945). 10. As regards the preliminary objection raised by Mr. In other words, the Plaintiffs would be entitled to claim rent only for Chaitra Kist of 1346 B.S. This view is in accordance with the decision in the case of Jitendra Nath Mandal v. Dr. Jahar Lal Das 50 C.W. N. 37 (1945). 10. As regards the preliminary objection raised by Mr. Sen, I think, it has substance but I am inclined to interfere with the decrees passed in those cases (S.A.'s 569 and 570) in revision subject to the payment of the deficit court-fees by the 7th of June, 1947, in those cases. In default, the application will stand dissmissed without costs. 11. The result, therefore, is that the judgment and the decree passed by the Court of Appeal below are varied. The Plaintiffs will have a decree for rent, etc., claimed for the Chaitra Kist of 1346 B.S. only. The rest of the claim for Chait Kist of 1345 and the first three Kists of 1346 will be dismissed. 12. As the success is divided, the parties will bear their own costs in all the Courts. The deficit court-fees must be paid within the date mentioned above failing which the said Appeals Nos. 569 and 570 of 1943 will stand dismissed, but without costs in all Courts.