JUDGMENT
1. This appeal by the plaintiff is directed against the judgment and decree of the 1st Additional Subordinate Judge, Patna, affirming those oi’ the Munsit’ third Court ol the same place.
2. The plaintiff who owned 12-1 annas proprietary interest instituted rent suit 3796 c£ 1943 in the court of the Munsif, 3rd Court, Patna, for recovery of rent in respect of the lands appertaining to khata No, 920, plots 1491 and 1/7091, having a total area of 1.87 acre situated in village Rampur diara alias Hardj Chapra. The arrear of rent was claimed in respect of 1347′ to 1350 Fs. The claim of the plaintiff was that the rent for plot No. 1491 was Rs. 15/15/9 and the rent for plot 1/7091 was to be calculated at the rate of 1./2/- per bigha of the area which came out of water. On this basis the plaintiff claimed Rs. 97/6/- as rental, and Rs. 15/8/- as interest, total Rs. 112/14/-.
3. The suit was contested by the defendants. Their case was that the rental of Rs. 15/15/9 was in respect of the entire area of 1.87 acres included in khata No. 920. They pleaded that irrespective of the area of plot No. 1/7091 which came out of water, the total rental oi the khata was never to exceed Rs. 15/15/9. According to their case the rent claimed by the plaintiff was excessive.
4. The trial court accepted the case of the defendant to the effect that the total rental of khata No. 920 was never to exceed Rs. 15/15/9. The trial court decreed the suit on the finding that in the years 1347 and 1348 Fs. both the plots were culturable, that in the year 1349 Fs. 1 bigha 18 khata 14 dhurs out of plot 1/7091 was out of water and that in year 1350 Fs. no portion of plot 1/7091 was out of water. The plaintiff thereafter went in appeal but the lower appellate court dismissed the appeal taking the same view as was taken by the trial court; hence this second appeal.
5. The appeal was once heard and allowed ‘by Manohar Lall J. by his judgment and decree elated 6-2-1947. His Lordship was of opinion that the rental of Rs. 15/15/9 represented the rental of plot 1491 only, and that the rental of that portion of plot 1/7091 which was out cf water in a particular year was to be calculated at the rate of Rs. 1/2/- per bigha. Subsequently an application was filed by some of the respondents for rehearing of the appeal on the ground that the notices of the appeal had not been properly served on them. By an order of this Court dated 20-11-1951, the appeal was ordered to be reheard but it is curious that even today the respondents are not represented before me.
6. Mr. Indrabhanu Singh, learned Advocate for the appellant, submitted before me that the courts below have not correctly appreciated the meaning of the entry in the remarks column against khata No. 920 in the survey khatian. The entry is in vernacular and runs thus :
“Erazi khasra No. 1/7091 Tukra shudc job mah Asin men. pani se bahar ata hai bad paimaish balage 5k hath jo erazi balu pai jati hai uska lagan sharah Rs. 1/2/- fi bigha mai ses minjumla lagan tasdiq shude ke wasool kia jata hai, warne mutabiq lagan tasdiq shude wasool hola hai.”
7. The learned advocate for the appellant contended with reference to similar entries with regard to several other khatas of the same village, that the interpretation given to the entry by the courts below would lead to absurd icsults. He demonstrated by calculation that on this interpretation the rental cf sandy land would be twice the rental tor good culturable lands. This according to the learned advocate, could not have been the intention of the settlement authorities. He further submitted that the similar entries have been the subject-matter of interpretation by this Court on more than one occasion. In this connection he referred to a Division Bench judgment in the case of –‘Jamuna Prasad Singh v. Mit Lal Raut’, Second Appeal No. 2032 of 1946 (A) decided by Manohar Lall and Mahabir Prasad JJ. on 8-2-1949. Mahabir Prasad J. with whom Manohar L-alt J. had agreed observed in that case in the following words :
“The courts below have strongly relied on the use of the word ‘Minjumla’ occurring in the entry for the interpretation they have adopted. It must however, be said that the word ‘Minjumla’ does not always mean ‘out of and in the context in which it has been used, it must mean ‘over and above’. ”
Mr. Indrabhanu Singh further submitted that the case of the defendants that the rental of the entire khata was in no circumstance to exceed Rs. 15/15/9 was belied by the registered sale deed dated 14-3-1944,. executed by the ryots themselves in resncct of half the area of plot No. 1491 and plot No. 1/7091 in favour of Hira Lall Missir, who has been added as party respondent to this appeal. This sale deed mentions Rs. 22/12/6 to be the rent with cess for half of the area sold by that document.
8. In my opinion, the contention raised on behalf of the appellant is well founded. I am of opinion that Rs. 15/15/9 was the yearly rental for plot No. 1491 only. The defendants respondents are liable to pay an additional rent for that portion of plot No. 1/7091 which was out of water in the years in suit at the rate of Rs. 1/2/- per bigha measured with a lagga of 5 1/2 cubits.
9. The learned Advocate for the appellant has not challenged the findings of the courts below regarding the area of plot No. 1/7091 which was found to have remained out of water in each of the years in suit.
10. The result is that the appeal succeeds
and the judgments and decrees of the courts
below are set aside in part. The office will
now prepare a fresh decree in this Court in the
light of the observations made above. The
plaintiff is entitled to the costs of the courts
below in proportion to his success, but as
there is no opposition before me, there will be
no order for costs of this Court.