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1920 Supreme(SC) 76
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD DUNEDIN, LORD MOULTON, AND MR. AMEER ALI.
MIDNAPUR ZAMINDARI COMPANY LIMITED - Appellant
Versus
NARESH NARAYAN ROY - Respondents
On Appeal from the High Court at Calcutta.
Decided On : Dec. 7. 1920.
Solicitors for appellants :Burton, Yeates, & Hart. Solicitors for respondent: W. W. Box & Co.
A lease clause providing for the settlement of rent at a fair rate upon expiry, with a provision for eviction if the tenant refuses such rent, constitutes a right of renewal rather than the creation of an occupancy right.
Headnote:(A) Act X of 1859 (Bengal Rent Act) - Occupancy rights - Interpretation of lease agreement - Right of renewal vs. occupancy right - A clause in a lease agreement providing that upon the expiry of the term, a new settlement shall be made at a fair rate, and that failure to agree to such rate would lead to eviction, does not create an occupancy right but merely a right of renewal. (Paras 4, 6)
(B) Tenancy - Meaning of "jote" - The term "jote" is a general term and is not necessarily equivalent to "raiyati jote," which is associated with an undoubted right of occupancy. (Para 6)
(C) Evidence of pre-existing rights - The use of language in a lease stating that a "jote" is being "created" is inconsistent with the recognition of a pre-existing occupancy right. (Para 10)
Facts of the case:
A zamindar sought possession of certain lands after the expiration of a lease. The tenants claimed they were occupancy tenants under the relevant rent act. The lease agreement contained a provision that upon the expiry of the term, a new settlement would be made at a fair rate, and if the tenant refused to pay the settled fair rent, the zamindar could take possession.
Findings of Court:
The court found that the agreement did not create an occupancy right or vest a new term of years but merely provided a right of renewal. Furthermore, there was no evidence of a pre-existing occupancy right, and the language of the agreement suggested the creation of a new interest rather than the recognition of an old one.
Issues: Whether the specific clause in the lease agreement created an occupancy right or a mere right of renewal, and whether the tenants possessed a pre-existing occupancy right.
Ratio Decidendi: A covenant to determine rent at a fair rate upon the expiration of a temporary lease, coupled with a provision for eviction upon refusal to pay such rent, is a right of renewal and not an occupancy right. The term "jote" is not synonymous with "raiyati jote" unless specifically intended.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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property law
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land tenure
- occupancy rights
- lease and renewal
- bengal rent act
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land tenure
Judgement
LORD DUNEDIN. This is an appeal from the judgment of the High Court at Calcutta affirming a judgment of the Subordinate Judge by which he decreed khas possession of certain reformed and accreted chur lands in favour of the plaintiff. The plaintiff is a zamindar and the lands in question are admittedly within his zamindari. The existent lease of the lands having, as he contended, expired, he gave the necessary notice to terminate the tenancy. The appellants plead that they are occupancy tenants and as such entitled to maintain possession under the terms of Act X. of 1859 (the Bengal Rent Act).
The appellants are the successors by transfer to the firm of Jardine, Skinner & Co., who were prior to 1864 in occupancy of the lands, the zamindar at that time being the respondents father, to whom he has succeeded. In that year the respondents father raised an action against Jardine, Skinner & Co., claiming the lands in question. That suit was compromised. At the same time Jardine, Skinner & Co. took a lease of the whole taluk within which the lands were situated. Patta and kabuliyat were executed.
The kabuliyat executed by the manager of Jardine, Skinner & Co. bears as follows "I having applied for a temporary ijara settlement of all the mahals, etc., appertaining to your zamindari and putni taluk .... you grant me an ijara settlement and ijara pottah for a term of eight years from 1271 to 1278 B.S., fixing Rs. 7500 as the annual rent, exclusive of collection charges." The kabuliyat then proceeds to incorporate the settlement as follows " You have instituted against me a suit, No. 19 of 1864, in the Sudder Amin Adalat of the district of Murshidabad, claiming a 4 annas 13 gundahs 1 kara 1 krant share of the reformed and accreted chur lands of Bajupur, Krishnapur, Dinurpara alias Manick Chuck, appertaining to taraf Bangsibadanpur, and a 7 annas share of the reformed and accreted chur land of Ashariadaha appertaining to pergunnah Kazirhatta. Creating a jote of the same and fixing Rs. 1300 as its yearly rent, you include the same also in the aforesaid ijara rent. In respect of the same, the stipulation is that after the expiry of the term of this ijara, pottah and kabuliyat will be given and taken, settling the rent of the aforesaid chur land in your nij share, at a fair rate, according to the proper rate prevailing in the villages, either amicably and (or) by suit; that until you settle the rent in the aforesaid method, according to the proper rate prevailing in the villages, I will pay up to that time the aforesaid yearly rent of Rs. 1300 in twelve monthly instalments as per kistbandi, and in default of any kist, I will pay interest at Re. 1 per cent, per month, and that if after the fair rent is settled according to the proper rate prevailing in the villages T refuse to pay that rent, then you will bring the lands under your khas possession by evicting me therefrom; and I shall not be able to make any objection to the same."
The case accordingly depends upon the proper interpretation of this clause in the ijara. The learned judges of the appellate Court have held that the clause is practically indistinguishable from the clause which was the subject of decision by this Board in the case of Jardine, Skinner & Co. v. Surut Soondari Debi. (L. R. 5 I.A. 160.) There, as here, there was a lease of other lands besides the lands in question, and the words of the kabuliyat are as follows " Having fixed a yearly rent of Rs. 609 4a. for your nij share of 20,950 bighas, describing them as per boundaries given in the schedule below, you have included it in the aforesaid ijara rent of Rs. 4417 9a. 5r. I shall be in possession of the said chur as a jote. Upon the expiration of the term of the ijara of the said mahals, a pottah and kabuliyat will be respectively given and taken in respect of the jote, regard being had to the quantity of land and amount of rent that shall be determined to belong to your nij share in accordance with the producti
