Case: Aukland Jute Company Limited Vs. Tulsichandra Goswami (A Ward of Court Represented By The Manager, Goswami Ward Estate, Srerampur)

KANIA, C.J. 1. I have read the judgment prepared by Mukherjea, J., in this appeal and agree with his conclusion and line of reasoning. 2. As it is conceded that no proceedings under Chapter X Part II of the Bengal Tenancy Act were taken in the matter and also that section 191 of the Bengal Tenancy Act is inapplicable, as the lands in question are not held as agricultural lands, the only questions which remain for decision by this Court are : (1) Whether the Collector, overriding the contract between the parties, had authority to fix the rent in respect of the alluvial lands, under Bengal Regulation VII of 1822 read with Bengal Alluvial Lands Settlement Act (Act XXXI of 1858); and ... (2) What is the effect of an entry made by the Collector under section 9 of Regulation VII of 1822 ? 3. As regards the first question, it seems to me that the whole scheme of Regulation VII of 1822 was ascertain facts, as it was found that the previous settlement of revenue was made on incorrect data. The regulation was therefore passed to enable the Collector and Revenue authorities to find out the actual rents received by the landlords and when it was not easy to ascertain the same to find out what was the customary rent in the locality. This appears to have been considered the proper data on which the revenue payable to Government could be more equitably fixed. Reading the Regulation as a whole, I do not think it empowers the Collector, when he finds a certain amount paid actually as rent, to fix - either a higher or a lower rent. His duty was merely to ascertain and not to fix any fair or equitable rent. Such construction put on the wording of section 9 of Regulation VII of 1822 in Ishur Chandra Sarkar v. Troylukhya Nath, and Jagadindra Nath Roy v. Mohendra Nath Moozumdar is correct. Act XXXI of 1858 is limited to alluvial lands and in section 2 thereof the word determine is used. As those lands came into existence for the first time, there could not be any previous rents in respect thereof. The word determine is, under the circumstances, appropriate to be used, although it does not empower the Collector to fix any other rent if some agreement in respect of such alluvial land found to exist. Section 2 of Act XXXI of 1858 does not expressly enlarge the powers of the Collector and read as a supplement to Regulation VII of 1822 does not enlarge the powers deemed to exist in the Collector in respect of the alluvial lands. The provisions in Regulation VII of 1822 relating to appeals etc., do not affect the powers of the Collector under section 9. In Kumar Chandra Singh Dudhoria v. Midnapore zamindary Co., although the newly formed alluvial land was treated as a separate estate under Act XXXI of 1858 the rent of the tenants was fixed under the Bengal Tenancy Act. In my opinion therefore, when an agreement in respect of rent as between a landlord and tenant exists, the Collector has no power under section 9 of Regulation VII of 1822 or under section 2 of Act XXXI of 1858 to fix (i.e., ascertain or determine) any other rent for the lands in question. Those sections define the limits of his jurisdiction and if he does anything beyond those limits his conclusion is not binding on the landlords or the tenant. 4. On the second question, the entry which the Collector is authorised to make, as a result of his enquiries, acquires a presumptive value of its correctness provided he has acted within the powers given to him by the Regulation. If however he has chosen to exceed those powers and fixed what he consider reasonable or fair rent (which is not the actual rent the tenant is under a contract to pay), in my opinion, the entry made in the record of rights in the excessive exercise of the Collectors powers has not the probative value given to it by the section. Assuming that an entry in fact is found in the regard of rights, at best it has a presumptive value and either party who is aggrieved is entitled to show that the entry is incorrect and is not made in the proper exercise of the powers of the Collector. This can be done, as stated in the section itself, in two ways : (1) by mutual agreement subsequently made between the parties; or (2) as a result of contest in a regular suit. The expression regular suit in the section is used in contrast to a summary suit or a revenue suit. It means a suit in a court having ordinary civil jurisdiction. In such a suit, the correctness or the binding nature of such an entry could be challenged either by the plaintiff filing a suit or by the defendant by way of defence. I do not think the words used in the section limit the right to challenge the entry only to the plaintiff. The section does not exclude the right of a defendant by way of defence to contest the accuracy of the entry. The effect of an entry made under Act XXXI of 1858 is not higher. It has the same probative value as an entry made under Regulation VII of 1822. 5. Under the circumstances, in my opinion, it was open to the Appellants to challenge the correctness of the entry and its binding nature on them in the suit filed by the respondent to recover rent from them. I find nothing in Regulation VII of 1822 or Act XXXI of 1858 to prevent such defence being raised. It may be notices that while the accuracy or binding nature of such an entry is contemplated to be contested in a regular suit, unlike provisions found in other Acts in similar circumstances no provision prescribing a time within such a suit has to be brought, is found in the Regulation. That supports the view that these objections could be raised by way of defence also. 6. In my opinion, the learned Judges who decided the appeal were in the error in disregarding the decision of their Court in Dhirendra Chandra Rai v. Nawab Khaja Habibulla. That case was decided on the correct interpretation of the relevant provisions of these two legislations.

Decision:
1[ds]It is a settled canon of construction that the interpreter should place himself as far as possible in the position of those whose words he is interpreting, and the meaning of certain words he is interpreting, and the meaning of certain words and terms used in an ancient document or a statute can be properly explained only by reference to the circumstances existing at the time when the statute was enacted or the document was written (x).It is a settled canon of construction that the interpreter should place himself as far as possible in the position of those whose words he is interpreting, and the meaning of certain words he is interpreting, and the meaning of certain words and terms used in an ancient document or a statute can be properly explained only by reference to the circumstances existing at the time when the statute was enacted or the document was written (x).71. The full title of the Regulation and its lengthy preamble give a clear idea of the objects it was intended to secure. The main object undoubtly was to declare the principles according to which the settlement of revenue was to be made in the new provinces. The preamble stated that the wish and intention of the Government were that in revising the existing settlement, the efforts of the Revenue Officers should be directed not to any extensive enhancement of the jama but to the objects of equalising the public burthens, and of ascertaining, settling and recording the rights, interest, privileges and properties of all persons and classes possessing interest in the lands or in the rent of produce thereof. In the third place, it was stated that it was the desire of the Government that the proceedings held and the records formed by the Collectors should be such that all demands, claims and suits might be adjudged and determined according to the facts stated therein unless they were formally altered or shown to be incorrect after full investigation on a regular suit.Sec. 9 clause (1) which is material to the present case lays down the nature and scope of the investigation that is to be made by the Collectors in making and revising settlements. The first paragraph of clause (1) lays a duty on the Collectors and other officers on the occasion of making or revising settlements of land revenue to unite, with the adjustment of the assessment and the investigation of the extent and produce of the lands, the object of ascertaining and recording the fullest possible information in regard to landed tenures, the rights, interest and privileges of the various classes of the agricultural community. For this purpose, their proceedings shall embrace the formation of as accurate a record as possible of all local usages connected with landed tenures, as full as practicable a specification of all persons enjoying the possession and property of the soil. . . . care being taken to distinguish the different modes of possession and property. . . more especially where several persons may hold interest in the subject-matter of different kinds or degrees. The details of the records that have to be prepared where the pattidari of bhaiyachara system of tenure prevail in the locality are then set out in the paragraph that follows. It is next said that A record shall likewise be formed of the rates per bigha of each description of land kind of produce demandable from the resident cultivators not claiming any transferable property in the soil, whether possessing the right of occupancy or not. The only other material provision in this clause is contained in the last paragraph which runs as follows : The information collected on the above points shall be so arranged and recorded as to admit of an immediate reference hereafter by the Courts of Judicature, it being understood and declared that all decisions on the demands of the zamindars shall hereafter be regulated by the rates of rent and modes of payment avowed and ascertained at the settlement, and recorded in the Collectors proceedings until distinctly altered by mutual agreement or after full investigation in a regular suit.73. The High Court is of opinion that the provisions of sec. 9 of the Regulation taken along with what is said in the preamble would definitely show that the duties of the Collector under the Regulation are not merely to ascertain and record existing rights with a view to ascertaining the assets for the purpose of fixing the revenue but also to fix and determine rents payable by under tenants and that subject to a right of suit in a Civil Court, the decision of the revenue authorities on these matters is final. I do not think that this is the proper view to take on the language of the section.74. Regulation VII of 1822 is an enactment relating to settlement of land revenue and not to settlement of rent. Unlike the rent Acts of late years, it does not purport to regulate the relation between landlord and tenant and does not lay down the conditions under which rents could be enhanced. The record-of-rights that has got to be prepared under the provisions of this Regulation is solely for the purpose of revenue settlement. Instead of proceeding to an estimated lump sum settlement. Instead of proceeding to an estimated lump sum settlement without a survey and enquiry into details as was done in 1793, it directs a survey and enquiry into the rights in every village and field for the purpose of determining the net rental or produce of the land on the basis of which revenue could be assessed. The different kinds of interests in the lands are recorded with a view to enable the authorities to decide with whom the settlement should be made and it affords protection also to the holders of these interests with whom no revenue engagement is made. The Revenue Officer has undoubtedly to record the rates of rent of each description of land in the village or the shares of produce demandable from the cultivators; but there are rates at which rents are actually paid or crops are delivered by the tenants. There are no words in the Regulation as we find in the later rent laws which entitled the Settlement Officer to fix and settle rents payable by tenants is excess of what was actually paid and that, in spite of any contract to the contrary existing between the landlord and the tenant. The learned Judges of the High Court laid stress on the passage in the preamble to the Regulation which speaks of ascertaining, settling and recording the rights, interest and privileges and different classes or persons by the Collectors and also on the last paragraph of clause (1) of sec. 9 which says inter alia that all decisions on the demands of the Zemindar shall hereafter be regulated by the rates of rent and modes of payment avowed and ascertained at the settlement, and recorded in the Collectors proceedings until distinctly altered by mutual agreement, or after full investigation in a regular suit. These words, in my opinion, show that the Collector is to settle and ascertain the existing rates and record them in his proceedings. The word settling implies the idea of removing doubts and placing things in a secure and undisputed position, and ascertaining might involve determination of what was indeterminate before. There may be doubts or uncertainty regarding the rates at which rents are actually paid for particular classes of land in particular villages and at the time when the Regulation was passed contractual rent was practically unknown, the payment of rent being regulated by Pargunah or customary rates. It may be, that neither the landlord nor the tenant was willing to help the Settlement authorities and acquaint them with the real state of affairs. In such circumstances, it would be the duty of the officer to make investigation and the findings arrived at by him on a result of the investigation would form part of his record. The rights thus ascertained would be taken by courts of Law to be correct and they shall be bound to decide any dispute between the parties on the basis thereof unless the record is altered by mutual agreement or by judicial pronouncement in a regularly instituted suit.75. That this is the correct view of the powers of the Settlement authorities acting under Regulation VII of 1822 would be clear when we look to the subsequent rent legislation in Bengal. In Bengal Act X of 1859, which was the first attempt to codify the law relating to agricultural tenancies in Bengal, definite provisions were made specifying the grounds upon which alone landlords could claim enhancement of rents paid by the tenants (vide sec. 17). Identical provisions are to be found in Bengal Act VIII of 1869 (vide sec. 18) by which the procedure in suits between landlord and tenant was amended and rent suits which were triable by Collectors under Act X of 1859 were made cognisable exclusively by Civil Courts. In 1878, an Act was passed (Act III of 1878) which laid down in clear terms that in settlement proceedings under Regulation VII of 1822 no rent shall be recorded higher than the rent previously payable by the tenants except on some one or more of the grounds specified in sec. 17 of Act X of 1859 or sec. 18 of Act VIII of 1869. It appears that the passing of this Act was necessitated by the fact that the Settlement authorities acting under Regulation VII of 1822 had in some instances erroneously undertaken to settle fair and equitable rent thereby enhanced the rent payable by the tenants, Sec. 3 of this Act provides that these enhanced rents recorded by the Settlement Officer shall be presumed to be valid unless the contrary is proved. But in order that validity may attach to rents thus recorded, it is necessary that a notice of enhancement should be served on each rayat or a jummabandi published under sec. 4; and sec. 5 requires that the grounds of enhancement shall be specified in any such notice or jummabandi. The tenant is given the right under the proviso to sec. 3 to institute a suit contesting his liability to pay the enhanced rent within three months from the date of the service of such notice. This shows that the legislature never contemplated that the Settlement Officer could alter and enhance the existing rents in a proceeding under Regulation VII of 1822. Powers were given to such officer to do so by this Act when specific grounds existed as contemplated by the rent Acts of 1859 and 1869 and the procedure indicated in it was followed. This Act did not, it seems, work satisfactorily and in the next year it was repealed and substituted by another Act which is known as the Bengal Rent Settlement Act (Act VIII of 1879) which made clear and specific provisions under which a Settlement Officer, in course of a proceeding for settlement of land revenue, could increase the existing rents paid by tenants and make such enhancement binding upon them. The grounds on which such rents could be enhanced are stated in sec. 6 and the rules for the determination of rent are elaborated in sec. 7. Sec. 10 provides that every tenant and rayat shall be liable to pay the rent recorded as demandable from him under this Act unless it shall be proved in any suit instituted by such undertenant or rayat to contest his liability to pay the same, that such rent has not been assessed in accordance with the provisions of the Act. It is to be noted that there was no provision in this Act under which the Settlement Officer could ignore any contract between the parties in the matter of settlement of rent and in the case of Prionath Das v. Ram Taran Chatterji, which was a case where rent was settled under this Act, the Privy Council held that if the landlord who granted the lease himself took revenue settlement of the estate, he could not demand rent in contravention of the terms of the contract even though such rent was fixed by the Settlement Officer. The Bengal Rent Settlement Act has been repealed, so far as Bengal is concerned, by the Bengal Tenancy Act of 1885 and Chapter X Part II of the Bengal Tenancy Act with the modification introduced since then, now contains the law relating to settlement of fair and equitable rent by revenue officers for all classes of tenants when settlement of land revenue is being or is about to be made and there is an express provision in this Act under which the Revenue authorities can ignore a contract between the parties if the contract was entered into subsequent to the passing of the Act.76. Mr. Chakravarty argues that the provisions in the Bengal Tenancy Act relating to settlement of fair and equitable rent by revenue officers must certainly be taken to be the law at the present day so far as the agricultural tenancies are concerned, and the provisions of Regulation VII of 1822 must, to that extent, be deemed to have been impliedly repealed and substituted by those of the Bengal Tenancy Act. It is said, however, that the Bengal Tenancy Act does not apply to non- agricultural tenancies and as regards fixing of rents for non- agricultural lands the provisions have still to be found in Regulation VII of 1822, no provision being made for them in any of the rent Acts. This contention is unsound and cannot be accepted. As has been said already, Regulation VII of 1822 empowers the revenue officers only to record existing rents. In order that the revenue officer might settle rents and enhance then when grounds of enhancement did exist, definite provisions were made in the various rent Acts and definite procedure was laid down in each of them which had to be scrupulously followed before such determination could be binding on the tenant. It is true that neither the Bengal Tenancy Act nor any of the preceding rent Acts applies to non-agricultural lands and the conclusion, I think, must be that with regard to these lands the legislature intended that the rent should be regulated exclusively by contract between the parties, obviously for the reason that non-agricultural tenants do not require that protection which the law thinks proper to give to agricultural tenants in rural Bengal. There may certainly be both agricultural and non-agricultural lands within an estate which is the subject-matter of revenue settlement. The revenue officer would have to assess revenue on the basis of rents payable by the non-agricultural tenants also, which may or may not be the same which the tenants are actually paying. But the tenants could not be compelled in law to pay such rent which the revenue officer determines for revenue purposes and as between the landlord and the tenant the rent payable would be fixed exclusively by agreement between the parties. In my opinion, therefore, the long string of decisions referred to in the judgment appealed from did interpret the provisions of Regulation VII of 1822 quite correctly and the law laid down there is perfectly should and should not be departed from.Act XXXI of 1858 was introduced for removing doubts which were felt by the revenue authorities respecting the proper course to be followed in the settlement of land added by alluvial accession to estates paying revenue to Government. Under Regulation XI 1825 whenever land is gained by gradual accession, whether from the recess of a river or of the sea, it shall be considered an increment to the estate or tenure to which it is attached. The proprietor of the estate, however, can be assessed to additional revenue for the added land and the tenant to whose tenancy it is an increment, is liable to pay additional rent for it. Act XXXI of 1858 is a small Act of two sections. The first section lays down the two alternative courses open to the revenue authorities while making settlement of the alluvial lands. The revenue assessed on the alluvial lands may be added to the jumma of the original estate or a new estate may be formed out of the added lands which is to be treated as a separate estate, no matter whether it is settled with the original proprietor or let in farm. Section 2, so far as is material for our present purposeThus in making the revenue settlement of the alluvial lands the Settlement Officer has got to prepare a record-of-rights in accordance with the provisions of Regulation VII of 1822. He is to ascertain and record the rights in exactly the same way as is contemplated by the Regulation. The additional thing that is necessary under the section is that he must determine whether any and what additional rent shall be payable in respect of the alluvial land by the person or persons entitled to an under-tenure in the original estate. It is to be noticed that this clause speaks not of enhanced rent but of additional rent which is to be determined in respect of the additional area attached to the original tenancy of the under-tenure holder by alluvial process and with regard to which presumably no rent could have been paid till then. To evaluate the assets for purposes of fixing the revenue, the revenue officer has undoubtedly to fix additional rental for these additional lands but there is nothing in the section which makes such determination legally binding on the enforceable against the tenant. The Act which is in the nature of a supplementary legislation does not lay down any procedure for settlement of fair rent for the additional lands in a manner which would make it binding upon the tenants. The position, therefore, is that the determination of additional rent as contemplated by section 2 of Act XXXI of 1858 is only for revenue purposes and it does not create any legal obligation vis-a-vis the landlord and the tenant. In the absence of any agreement between the landlord and the tenant relating to the rent for the additional lands, the proper procedure for determination of such rent, which would be binding on the tenant, would be by way of suit under section 52 of the Bengal Tenancy Act where that Act is applicable. On this point again I am of opinion that the case of Dhirendra Chandra Rai v. Nawab Khaja Habibullah, was rightly decided and the learned Judges of the High Court were wrong in holding that this decision was unsound.79. It is true that a presumption of validity attaches to the record of the Collector under the provision of section 9 of Regulation VII of 1822 and Courts of Law are bound to act upon them till they are altered or held to be incorrect; but this presumption, in my opinion, will arise only when the Revenue Officer purports to record existing rights. If the officer arrogates to himself the authority to determine what the proper rent should be and not merely what it actually is, he would be acting beyond his powers as conferred by the Regulation and settlement of rent made by him would not be binding on Courts of Law and would not have to be set aside by a regular suit. It appears from the record of the Settlement Officer in the present case that he was assuming that he had jurisdiction to alter rents and the expressed opinion that the existing rents paid for the non-agricultural lands by the mill companies were sufficiently high. He took an average of these rates and settled that as rent for the current period80. Without accepting the correctness of this argument, but assuming it to be sound, it seems to me that the propriety of the entry relating to rent which has been recorded by the Settlement Officer and which has only a presumptive value, can be challenged in this very suit where the landlord has made a claim for rent on the basis of such an entry. The expression regular suit as used the Regulation VII of 1822 means, in my opinion, a suit in a Civil Court which is decided not summarily but after proper investigation by the Judge himself. The word regular implies that the proceeding is not a summary one. Various provisions are to be found in the Regulation, according to which decisions in summary proceedings could be set aside or contested in regular suits. Under the Regulations which were in force previous to 1822, the rent suits were triable by Civil Courts of Zilla Judges though in certain matters relating to distraint and other things the Judge could act summarily on reports given by the Collectors. Under Regulation VII of 1831 summary suits for rents could be brought before a Collector of Revenue and his decision was final subject to the right of the aggrieved party to bring a regular suit contesting its validity in a Civil Court. Under Act X of 1859, exclusive jurisdiction in rent suits was given to the Collectors but this was again taken away and restored to Civil Courts by Act VIII of 1869. There is no doubt in my mind that the rent suit, which has been brought in the Court of the Subordinate Judge in the present case, would answer to the description of a regular suit as given in the Regulation, and it seems to me that it is open to the defendant to challenge the validity of the entry relating to rent as settled by the Revenue Officer by way of defence in this suit. The language of section 9 of Regulation VII of 1822 does not warrant the conclusion that the party aggrieved by the entry must have to bring a suit as plaintiff and could not challenge the validity of the same by way of defence in a suit instituted against him by the other side in whose favour the entry stands, nor does it prescribe any period of time within which the record must be challenged. There could be no question of limitation in a case like this, as the law of limitation bars a suit and not a defence.Under the Potta as stated already, the new accretions could be held by the lessees free of rent till they attained the level of the High land of the Potta as it existed in 1907. According to the trial Judge, this condition in the Potta was fulfilled and the Subordinate Judge is of opinion that the present level of the accreted land is much higher that that of the high land in 1907. On appeal this finding was reversed and it was held by the District Judge that the evidence adduced on this point on the plaintiffs side was thoroughly worthless. In my opinion, this is a finding of fact which would be binding on us particularly for the reason that it was not challenged before the High Court in second appeal. I am not much impressed by the argument of Mr. Chakravarty that in coming to this conclusion the District Judge misdirected himself on the question of onus of proof and laid the burden of proof wrongly on the Plaintiff. It was undoubtedly the defendants case in the written statement that under the terms of the Potta the suit lands could not be assessed to rent so long as they had not risen to the level of the high lands by natural processes. For the purpose of proving this, the defendant took out a commission for local investigation and besides the Commissioners report, there was oral evidence adduced on both sides. The trial Judge in deciding this point in favour of the plaintiff relied mainly on the evidence of the witnesses whom the plaintiff examined and he also made certain calculations of his own on the basis of certain facts disclosed by the Commissioners report and other materials on the record. The District Judge in reversing the findings of the trial court pronounced the evidence of the plaintiffs witness to be unworthy of credence and further held that the calculations of the trial Judge were based upon unreliable data. In a case like this, where evidence was adduced by both parties and where it could not be said that the evidence was evenly balanced, the question of onus is not at all material even if we assume that the onus really lay on the defendant. The strongest thing against the plaintiff is that he did not assail the findings of the District Judge before the High Court in second appeal and has not even taken this point in the statement of case lodged in this Court.82. I may mention here that if the condition in the Potta relating to the level of the accreted lands has actually been fulfilled, it would not only be not necessary for the Plaintiff but would be positively against his interest to claim rent on the basis of the C. S. Khatian. The Potta fixes the rate of Rs. 25 per bigha if and when the alluvial lands reached the height of the firm land; and if this required level has already been reached, then the claim should not have been Rs. 15 per bigha as has been settled by the Revenue Officer and claimed by the Plaintiff but Rs. 25 per bigha as the Potta itself lays down. Therefore, the entry in the C. S. Khatian regarding the rent payable for the lands in suit should be held to be wrong and the Plaintiff suit brought on the basis of that entry must fail.I agree with the view expressed by Mukherjea, J., that the expression regular suit as used in Regulation VII of 1882 means a suit which is not to be decided summarily but it to be decided by a competent civil court according to the procedure applicable to ordinary suits and is a suit in which the rights of the parties can be finally determined. As there is nothing in Regulation VII of 1882 or Act XXXI of 18558 to empower the settlement officer to ignore an existing contract between the parties as to rent, the entry in the settlement record which is contrary to the terms of such a contract must be held to be incorrect, and the contract between the parties, must be given effect to. The contract between the parties in this case was that new accretions would be held by the lessee free of rent till that attain the level of the high land originally settled under the patta as it existed in 1907. Whether the land in question has attained the level referred to in the contract is a question of fact and must be decided with reference to the finding of the learned District Judge who was the final court of appeal. That finding in my opinion though somewhat clumsily expressed, cannot be said to be not in accordance with law, and I do not agree with the learned Advocate for the respondent that the District Judge in arriving at it has misdirected himself on the question of onus of proof.