KUMAR CHANDRA SINGH DUDHORIA vs MIDNAPORE ZEMINDARY COMPANY, LIMITED

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1941 Supreme(SC) 35

PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ATKIN, LORD THANKERTON, LORD ROMER, SIR GEORGE RANKIN, AND SIR SIDNEY ABRAHAMS.
KUMAR CHANDRA SINGH DUDHORIA - Appellant
Versus
MIDNAPORE ZEMINDARY COMPANY, LIMITED - Respondents
On appeal from the High Court at Calcutta.
Decided On : Dec. 18. 1941.

Advocates:
Solicitors for appellants :Stanley Johnson & Allen. Solicitors for respondents: Burton, Yeates & Hart.

Important Points

Under the Bengal Tenancy Act, 1885, rents settled in a Settlement Rent-roll are deemed correct and fair under Section 104J unless challenged via a civil suit under Section 104H within six months. This statutory finality precludes subsequent claims based on contractual rights not raised during that period.

Subject

Property Law - Land Revenue and Tenancy

Act Referred

BENGAL TENANCY ACT: S.104(j), S.102

Headnote

(A) Bengal Tenancy Act, 1885 - Sections 104, 104H, 104J and 111A - Settlement of rents - Liability for rent - Presumption of correctness - Challenge to rent settled in Settlement Rent-roll - The Settlement Officer is bound to regard contractual rights when settling fair and equitable rents - Any person aggrieved by the rent settled in a Settlement Rent-roll must institute a suit under Section 104H within the prescribed period of six months - Failure to do so results in the rent being deemed correctly settled and fair and equitable under Section 104J - Section 111A does not provide an alternative remedy to challenge the rent settled under Sections 104A to 104F.

(B) Civil Procedure Code - Section 11 - Res judicata - A decree that is expressed to be subject to the final decision of another court is not a final decree for the purposes of res judicata.

Facts of the case:
A landlord sought recovery of arrears of rent for alluvial land that had been settled as a separate estate by revenue authorities. The tenant contended that a prior lease agreement, which fixed rent in perpetuity and precluded additional rent regardless of accretion or diluvion, covered the newly formed alluvial land. The revenue authorities had fixed a specific rent in the settlement proceedings and published the record-of-rights. The tenant had not instituted any suit under the statutory mechanism provided to challenge the rent settled in the Settlement Rent-roll within the prescribed limitation period.

Findings of Court:
The court found that the liability for rent was determined during the settlement proceedings. The tenant's failure to challenge the rent under the specific statutory provision within the limitation period precluded them from later claiming that a contractual agreement exempted them from such payment. The court further held that the previous decrees relied upon for res judicata were either not final or did not address the specific contractual contention.

Issues: Whether the contractual stipulation in a lease precludes the claim for additional rent on alluvial land settled by a Revenue Officer, and whether the statutory presumption of correctness under the tenancy act overrides such contractual claims if not challenged timely under Section 104H.

Ratio Decidendi: The Settlement Officer is required to consider contractual rights when fixing fair and equitable rents. Once rent is settled and incorporated into the record-of-rights, Section 104J creates a legal presumption of correctness. The only remedy to challenge this is a suit under Section 104H within six months. Section 111A does not offer an alternative path to challenge the rent amount or liability settled under the settlement rent-roll, as doing so would render the limitation period in Section 104H and the finality in Section 104J nugatory.

Result: Appeal allowed.

Legal Category Hierarchy

Judgement

Consolidated Appeals (No. ii of 1940) from two decrees of the High Court (July 27 and 29, 1938) which reversed two decrees of the Subordinate Judge of Nadia (September 17, 1935).

The following facts are taken from the judgment of the Judicial Committee. This consolidated appeal arose out of two suits instituted by the appellants, claiming arrears of rent from the respondents for two successive periods of three years in respect of land belonging to Touzi No. 3653 of the Murshidabad Collectorate. The appellants were the proprietors of Touzi No. 523 of the Murshidabad Collectorate, and the respondents held a patni taluk comprising some villages in that estate under a patni patta executed by the appellants predecessors in interest in favour of the respondents predecessors on November 5, 1866, at a rent fixed in perpetuity of Rs.5483-5-11 per year (The patta provided (inter alia) that " Profits and losses in consequence of drought or inundation, death, abandonment, waste, desertion, production or " non-production, destruction by insects, deposit of sand, payment or non-payment, possession or dispossession, alluvion and diluvion, etc., shall be yours, never on any account whatsoever shall you or your heirs or representatives be competent to claim any reduction of rent, however little, and we or our heirs and representatives shall not, on any account, be entitled to demand any additional rent over and above the fixed rent; if we or you do so, it will be rejected . . . ." ").

The estate bearing Touzi No. 3653 consists of alluvial land situated on the bank of the Ganges in an old bed of the river Mathabanga formed before 1914. It was treated as an alluvial accretion to Touzi No. 523, and as added land within the meaning of s. 6 of the Bengal Alluvion and Diluvion Act, 1847 (Act

IX. of 1847), and therefore liable to assessment, and under s. 1 of the Bengal Alluvial Land Settlement Act, 1858 (Act XXXI. of 1858), the Revenue Authorities decided to assess and settle it as a separate estate. Such assessment and settlement took place under s. 3 of Regulation 2 of 1819, and the rent of all under-tenants was fixed under the provisions of Chapter X. of the Bengal Tenancy Act (Act VIII. of 1885). The estate was temporarily settled as Touzi No. 3653 on July 18, 1921, with the then owner of Touzi No. 523 for a period of fifteen years from April 1, 1921, at a revenue of Rs.847. Following the settlement, records-of-rights in Touzi No. 3653 were published. In that relating to the tenancy the respondent company was shown as the tenure-holder at a rent of Rs.1028-2-0, which was the rent fixed in the settlement proceedings. The first suit under appeal sought recovery of the rent so fixed for the three years 1921- 1922 to 1924- 1925, and the second suit for the three years 1925- 1926 to 1928- 1929.

Law. Rep. 69 Ind. App. 51 ( 1941- 1942) Kumar C handra Singh v. Midnapore Zemindary

100

The Subordinate Judge granted two decrees in favour of the appellants, but they were reversed by two decrees of the High Court of Judicature at Fort William in Bengal (Nasim Ali and Henderson JJ.), who held that the appellants were precluded by the contract from claiming any additional rent for the alluvial lands. The appellants now appealed.

1941. Oct. 20, 21, 22. J. M. Parikh for the appellants. There is no dispute about the amount of the rent, but as to liability. The first question, one of construction, is whether the respondents contention that the clause in the patni lease precluded the appellants from claiming the rent in question is right. The lease of 1866 is in respect of land in the permanently settled Touzi No. 523, and no other, and the newly formed land, Touzi No. 3653, for which rent is now claimed was not included either in the permanent settlement or in the lease of 1866. There are no suitable words in the lease to show that the clause in point has any application to the added land, which never existed in 1866, and only appeared in 1914. Inasmuch,

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