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Petitioner: ABU NASSER SAYEDULLAH VS Respondent: ABDUL MALIK
P L D 1960 Dacca 587
P L D 1960 Dacca 587
Before Rahman, J
ABU NASSER SAYEDULLAH‑Petitioner
versus
ABDUL MALIK AND ANOTHER‑Opposite‑Parties
Civil Rule No. 1007 of 1959, decided on 9th February, 1960.
Bengal Tenancy Act (VIII of 1885), S. 3 (17), proviso- Bargadar could become tenant before introduction of proviso but cannot do so after its introduction unless conditions mentioned in proviso are fuelled‑Raiyati coming into existence prior to introduction of proviso‑Proviso will apply in case of suit for barga share for period subsequent to its introduction.
Before the introduction of proviso to clause 17 of section 3 of the Bengal Tenancy Act, 1885 even a bargadar could be a tenant under the Act, but, after the introduction of the proviso this is not possible unless the exceptions therein mentioned are satisfied. The proviso is in the nature of a declaratory provision and governs the case in which the share of the barga produce for period subsequent to the introduction of the said proviso is claimed. Where the raiyati is said to have come into existence prior to the introduction of the proviso, for a period in respect of which the cause of action arose before the introduction of the proviso, the landlord of the bargadars is entitled to recover rent only as under the old section, but for any period in respect of which the cause of action arose after that date, he is entitled to recover rent as under the new section.
Suresh Chandra Bose for Petitioner.
A. K. M. Nurul Islam for Opposite‑Parties.
JUDGMENT
This application under section 25 of the Provincial Small Cause Courts Act is directed against the judgment and decree of the Munsif, 1st Court, Dacca, in a Small Cause Courts suit for the recovery of a sum of Rs. 67‑8‑0 as the price of barga crops for the years 1363 and 1364 B. S.
2. The plaintiff' claimed that the defendants were his bargadars cultivating the said land under him and that they had delivered their barga share of the crops upto 1362 B. S. but failed and neglected to do so thereafter.
3. The defendants contested the suit and their defence was that they were not mere cultivators but that they had a tenancy right in the land and that they were paying the rent to the Govern ment after the acquisition of the rent‑receiving interest of the plaintiff and that their rental was rent in kind, namely, half the produce. The learned Small Cause Courts Judge, on the basis of the C. S. Khatian, Ext. B, which showed that Dil Mamud, the person who was said by the plaintiff to have taken the barga lease, was recorded therein as a raiyati sthitiban tenant and the rental was mentioned as half the produce, held that he was a tenant in the land and that the plaintiff's suit must fail. In this connection the learned Munsif also relied upon a dakhila said to have been granted by the Acquired Estate under the East Bengal State Acquisition and Tenancy Act to defendant No. 1 showing payment of rent for the year 1363 B. S.
4. It is against this that the plaintiff has come up in revision to this Court and the only point urged on his behalf is that the learned Small Cause Courts Judge was wrong in holding that the said Dil Mamud had any kind of tenancy in the land. The rent was not a fixed rent, being only a particular share of the produce which may well vary from year to year. The C. S. record is said to have been of a period prior to the introduction of the proviso to clause 17 of section 3 of the Bengal Tenancy Act ; hence, whatever presumption it created prior to the introduction of the said amendment was no longer attachable to the said record‑of rights in view of the provision of the .aforesaid proviso which reads as follows :‑---
"Provided that a person who, under the system generally known as adhi barga, or bhag, cultivates the land of another person on condition of delivering a share of the produce to that person, is not a tenant, unless‑
(i) such person has been expressly admitted to be a tenant by his 13ndlord in any document executed by him or executed in his favour and accepted by him, or
(ii) he has been or is held by a Civil Court to be a tenant."
5. The two Exceptions given in the proviso do not apply in the present case. The question, therefore, is whether the claim of tenancy was justified. Before the introduction of this proviso there is no doubt that even a bargadar could be a tenant under the Bengal Tenancy Act but, after the introduction of this proviso; this is not possible unless the Exceptions therein mentioned are satisfied.
6. The learned Advocate opposing this Rule has contended that this proviso is not retrospective in effect and, therefore, what ever the status of the tenants prior to the introduction of the proviso be, they must be taken to be continuing unless it has been shown to have been rebutted by the landlord and such rebuttal could only be established by a definite act of termination of the tenancy in accordance with one or the other method provided under the Bengal Tenancy Act.
7. In support of this contention, he has also relied on two decisions of the Calcutta High Court in the cases of Deb Nath Das Bairagi and others v. Ram Sundar Barman (19 C W N 1205) and Suresh Chandra Dutta and others v. Mahendra Chandra De and others (34 G W N 845).
The first case merely shows that an adhiar or a bargadar may be a tenant but there is nothing therein with regard to the interpreta tion of the proviso. But in the second case it has been held in a suit instituted as a Small Cause Courts Suit on the 15th April, 1929, for the price of a certain share of the produce in respect of the years 1926 to 1928, on the allegations that the defendants were labourers ; that since they had been recorded in the record‑of -rights finally published before the amending Act of 1928 came into force as raiyats they had a raiyati right under the old Bengal Tenancy Act and hence the suit was a rent suit, the provisions of the proviso introduced by the amending Act not being of retros pective effect.
8. It should be observed, however, that the suit in this case was for the recovery of arrears of rent for a period prior to the introduction of the proviso above quoted. The proviso is in the nature of a declaratory provision in a statute and, in my view, it governs the case in which the share of the barga produce for periods subsequent to the introduction of the above amendment is claimed. The Legislature, to my mind, should have introduced clear provisions into the statute to show that the previous position was not sought to be disturbed if that was its intention. In this view, I find support from a subsequent decision of the Calcutta High Court itself in the case of Sishu Mohan Koyal and others v. Rajendra Nath Sarkar and others (A I R 1938 Cal. 707), where the case reported in 34 C W N‑845 was considered and distinguished upon the basis of the above principle. That too was a case of an application under section 25 of the Provincial Small Cause Courts Act by the defendants against a decree passed against them as bargadars for the share of the produce of the land. There too the raiyati was said to have come into existence prior to the introduction of the amendment, was recorded as such in the record‑of‑rights and the question was as to whether the amendment will apply in the case of a suit for bhag rent for periods subsequent to the amendment. The decision. in the case reported in 34 C W N 845 was also relied upon to support the contention that the amendment would not affect the case. The Calcutta High Court, however, took the view that, since the suit in the case before them was for a period after the amendment the said decision reported in 34 C W N 845 did not apply as there the suit was for recovery of a share of bhag produce prior to the amendment.
9. I have myself already taken the same view in another case and I further find that with regard to the applicability of the provisions of section 48 of the Bengal Tenancy Act the Calcutta High Court in the case of Digambar Paul Ghosh and others v. Tafazuddi Ijaradar (37 C W N 1033) also held that for a period in respect of which the cause of action arose before the Amending Act came into force, the landlord of an under‑raiyati is entitled C to recover rent only as under the old section ; but, for any period in respect of which the cause of action arose after that date, he is entitled to recover rent as under the new section alone.
10. In this view of the matter, since in the present case the bhag produce is claimed for the period 1363 to 1364 B. S., which is well after the introduction of the amendment, the proviso is applicable and the defendant cannot succeed in his claim of being a tenant under the provisions prevailing prior to the introduction of the said amendment.
11. This is the only point that has been urged before me in this case and, though the petitioner has succeeded therein, it yet remains to be seen whether on the evidence the plaintiff has proved his case. The learned Small Cause Courts Judge does not appear to have considered the said evidence carefully, for, he may have been influenced by the fact that the defendant had a tenancy right in the land and the suit was not maintainable under the Provincial Small Cause Courts Act.
12. Hence I make this Rule absolute, set aside the order of the learned Small Cause Courts Judge and remand the case for a rehearing of the same on merits in the light of the observations made by me above on the question of law. The costs of this Rule will abide the result.
K. B. A. Rule made absolute.