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Calcutta High Court
Surendra Chandra Ray Choudhuri vs Kedareswar Choudhuri on 31 July, 1928
Equivalent citations: AIR 1929 Cal 156
Author: Suhrawardy


Suhrawardy, J.

1. These five appeals arise out of suits for recovery of rent. They have been decreed by the lower appellate Court at the admitted rate. The plaintiff claims that he is entitled to enhanced rent as fixed by the Settlement Officer under Section 105, Ben. Ten. Act. It appears that the plaintiff had several co-sharers in the mehal. There were batwara proceedings and certain lands were allotted to the plaintiff in his Saham. After the publication of the Record-of-Rights he applied for settlement of fair and equitable rent under Section 105, Ben. Ten. Act on the grounds which are covered by Section 30, Ben. Ten Act. These applications were fought by the defendants and partially allowed. The plaintiff in these suits now claims rent as fixed by ihe Settlement Officer. The defence with which we are now concerned is that the Settlement Officer had no jurisdiction to try the matter under Section 105, Ben. Ten. Act and, therefore, his decree is a nullity and cannot have legal effect. This objection is based upon the ground that the settlement khatians show that they include several plots and with reference to one plot in some of them the defendants’ interest in the holding as a raiyat is noted as fractional, the plots in occupation of the defendants together with the share in one plot did not constitute a holding within the meaning of Section 30, Ben. Ten. Act and accordingly the Settlement Officer had no jurisdiction to enhance the rent of the lands in the occupation of the defendants. The learned Subordinate Judge has given effect to this contention and held that the word ‘land’ used in Section 105 does not mean and include a parcel or undivided share of a tenancy and hence the Settlement Officer had no jurisdiction to enhance the rent under Section 105 and his decision is ultra vires and inoperative.

2. The question raised is a serious one as it is directed to nullify the effect of the solemn act of a Court of justice. We have therefore carefully looked into the matter and the law as it at present stands and we are unable to say that the decree of the revenue officer was without jurisdiction and ultra vires. The meaning of the term ‘land’ came up for consideration in the case of Safaruddi v. A.K. Fazal Huq [1914] 21 0. L.J. 592. The case was tried by D. Chatterjee, J. sitting singly and his decision was affirmed by a Bench consisting of Jenkins, C.J., and N.R. Chatterjea, J. The report of the case as it appears in the Calcutta Law Journal leads one to suppose that there was a division between the cosharers of the land and the tenants had executed separate kabuliats in favour of the cosharers. If that were so, the decision would be in consonance with the decisions of case under Section 30, Ben. Ten. Act. Bat we have looked into the record of the case and find that as a matter of fact there was no division of the land but the tenants executed kabuliats in favour of different cosharers in respect of their share in the holding. The learned Judge there considered as to what meaning should be attached to the word ‘land’ in Section 105, Ban. Ten. Act and the observation made by him on this point may be quoted here with advantage:

The next question that arises is whether the share of the land covered by each kabuliat can be said to be the land held by the tenant. It has been held in respect of holdings that a share of an undivided holding cannot be called a holding : see Hurry Churn v. Raja, Runjit Singh [1896] 25 Cal. 917 note. The word ‘holding’ does not occur in Section 105. The word occurring there is ‘land held by the tenant.’ The word ‘land’ has not been defined in the Bengal Tenancy Act. I do not see any reason why the share of the land held under particular landlord should not come within the purview of the word ‘land’ used in the section. In this view of the case I think that Section 188, Ban. Ten. Act is no bar to the maintenance of this application.

3. In that case the objection was that one of the landlords who wanted to enhance the rent under Section 52, Ben. Ten. Act could not apply for settlement of fair rent. In the Letters Patent appeal Jenkins, C.J. remarked:

This case has been decided favourably to the plaintiffs by Digambar Chatterjee, J. on the footing that there were separate tenancies and we think that it there were separate tenancies then in the circumstances of this case there was a compliance with the provisions of Section 105, Ben. Ten. Act.

4. This case, so far as I know, has not been dissented from subsequently and it carries with it high authority of three learned Judges of this Court. The result of the decision is that though the land in occupation of the tenant may not be an entire holding, it may form the subject of proceedings under Section 105. The result may appear to be incongruous if not quite absurd because under the law as it stands at present an application under Section 30, Ben. Ten. Act, by a cosharer landlord is not competent ; but if he applies under Section 105 for enhancement of rent under Section 30 he gets the right to do so, even if his claim refers to a share of a holding. There are cases which lay down that where a tenant executes a separate kabuliab in favour of a cosharer landlord proceedings against him for enhancement of rent are maintainable: Panahanan v. Raj Kumar [1892] 19 Cal. 610 and Gobinda v. Hamidulla [1903] 7 C.W.N. 670. But it is not necessary to go so far as we have got direct authority on the point that the word ‘land’ as used in Section 105 may include a share of a cosharer landlord and may therefore include the share of a tenant in a holding.

5. The question as regards the decree of the revenue officer being without jurisdiction and ultra vires may be looked at from a different point of view. Under Section 81. Estates Partition Act, the Deputy Collector has the right to split up a holding which accordingly forms a separate tenancy under a particular landlord. The mere fact that in one of the plots the tenant has been given a share does not take away the effect of Section 81, Partition Act. I must note here that in the proceedings before the Settlement Officer which were contested no objection was taken on this ground. It was virtually admitted that the plaintiff was competent to ask for enhancement under the law. It does not therefore lie in the mouth of the defendants to turn round now and say that the decision of the Settlement Officer was without jurisdiction in view of certain decisions of this Court which held that proceedings under Section 30 for enhancement of rent must relate to an entire tenancy. The law as understood by the Settlement Officer was laid down in the case reported in Safaruddi v. Fazal Huq [1914] 21 C.L.J. 592. If there has been any subsequent divergence from that view and even if the latter view is correct, an error of law is not a ground for setting aside a previous decree as passed without jurisdiction or for a declaration that it mustj never operate as res judicata. In view of the observations made above I am of opinion that these appeals must succeed; the decrees of the Courts below are set aside and the plaintiff’s suits decreed with costs both here and in the Courts below. In Appeals Nos. 1379 and 1380 of 1926 the respondents have not appeared. I accordingly make no order for costs in this Court in these cases but the plaintiff will be entitled to his costs in the Courts below.

Garlick, J.

6. I agree.

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