P L D 1965 Supreme Court 434 (PLP)

HAMOODUR RAHMAN, J.‑This appeal by special leave, arises out of a suit for the recovery of a sum of Rs. 4,100 on account of the price of barga crop grown by the respondents herein during the years 1362 to 1364 B. S. (1955‑57 A. D.). The plaintiffs claimed that they had acquired the suit lands by purchase in February 1929, and that they were since then possessing them partly by cultivating the lands themselves and partly by getting the same cultivated by bargadars. The respon dents herein, it is alleged, took barga settlement of the lands from the plaintiffs in the year 1359 B. S. upon the condition that they would deliver half of the produce or the market value thereof every year in the month of Chaitra. They regularly delivered the share of the produce to the appellants, who were the plaintiffs in the suit, up to the year 1361 B.S., but thereafter they defaulted in delivering the same, hence the appellants instituted the suit out of which the present appeal arises in the year 1958 for the recovery of the price of the half share of the crop for the years 1362 to 1364 B. S., in the Court of the Subordinate Judge, Rajshahi, as a money suit. The respondents contested the said suit and totally denied the story of the barga settlement. Their case was that the lands had been obtained in koifa settlement by their .father Imam Mondal from the superior landlords. He possessed the same during his life‑time as such tenant and thereafter the defendants had been in continuous possession thereof in the same right. They had paid rents regularly to the vendors of the appellants and to the appellants themselves since their purchase. Their names were also duly recorded in the revenue records as kotfa tenants. Their further case was that they had paid rents to the appellants up to 1362 B.S. but as their rent‑receiving interest had then been acquired by Government under the East Bengal State Acquisition and Tenancy Act, 1950, they were not entitled to demand any further rent. The trial Court accepted the plea of the respondents on the basis of the entries in the revenue records which recorded them as korfa tenants and also held that they had paid rents up to 1362 B.S., when the rent‑receiving interests of the landlords had been acquired by Government and no further rent was payable to them. The suit .vas, accordingly, dismissed. The evidence adduced in the case disclosed that even the father of the respondents was recorded as a kolfa tenant in the E. S. Khatians, which were finally published in 1919, paying half the produce of the lands as rent. The appellants had failed to produce any reliable evidence to prove that the lands were ever in their or in their vendors' khas possession. Indeed, even the document of title, by which they acquired the lands, did not describe them as being in the khan possession of the vendors. On the other hand, the consistent story of the witnesses produced on behalf of the respondents established that they and their father had all along been in possession thereof since 1919. Certain Kabuliyats produced by the appellants in support of their story of barga settlement were also found to be fabricated documents. Indeed, the appellants themselves did not appear to be certain as to the date from which the alleged barga settlement had commenced. In the plaint, as originally filed, it was asserted that it was a "Sankarari" (annual) barga tenancy commencing from 1359 i

5. S. but subsequently by amendment this word was deleted and the year of the commencement of the barga settlement changed to 1361 B. S. The Kabuliyats produced also appeared to have been granted to the appellants by different persons and the stamps affixed to these documents were stamps which came into use long after the alleged date of settlement. As against this decision the appellants went up in appeal before the District Judge. The latter accepted that the C. S. Khatians, which showed the respondents' father as an under-raiyat under the predecessor‑in‑interest of the appellants paying half the crop of the lands as rent, were finally published long before 1928 when clause (171 of section 3 of the Bengal Tenancy Act was amended by the addition of a proviso thereto, nevertheless, he held relying on a decision of the High Court of East Pakistan in the case of Abu Nasser Sayedullah v. Abdul Malik and another (P L D 1960 Dacca 587) that the respondents could not, in a suit for the recovery of the price of the share of the crop for any year subsequent to the date of the amendment of the Bengal Tenancy Act, i. e. 1928 set up the defence that they were under tenants of the land. Hence, the appeal was allowed and the case was sent back on remand to the trial Court for decision upon evidence as to the amount due to the appellants. The respondents appealed to the High Court of East Pakistan and a Division Bench of the said High Court overruling the decision in the case of Abu Nasser Sayedulla, which was a decision of a Single Judge, held that notwithstanding the amendment of section `, of the Bengal Tenancy Act in 1928, by the addition of a proviso, it was still open to a person sued for the price of the share of crops as a bargadar to set up the defence A that he was not a bargadar but a tenant, whether the suit was for a period prior to 1928 or for a period subsequently there to. Leave was granted in this case to consider whether the proviso in clause (17) of section 3 of the Bengal Tenancy Act introduced by the amendment in 1928 had been correctly-interpreted by the High Court. Before we take up for consideration this question it is necessary to point out that under subsection (13) of section 3 of the Bengal Tenancy Act "rent" is defined as follows: " `rent' means whatever is lawfully payable or ‑ ‑ money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant." On the basis of this definition it had been held in a series of decisions of the Calcutta High Court that where a fixed quantity of produce or its money equivalent was payable by a person in use or occupation of a land, it was rent and the relationship between such a person and the owner of the land was that of a landlord and tenant. The effect of these decisions was that the status of a bargadar as distinguished from a tenant had necessarily to be determined in each case as an inference from the proved circumstances. It was to set at rest this uncertainty that in 1928 the definition of a "tenant" was amended by adding a proviso to section 3 (17) which, after amendment, read as follows :‑ "3 (17) `tenant' means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person Provided that a person, who under the system generally known as `adhi', `barga' or `bhag', cultivat; s the lard 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 landlord 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." The question that falls to be decided in this case is as to what was the effect of the addition of this proviso. Had this proviso merely laid down certain rules for the determination of the status of a tenant and done no more? According to the High Court of East Pakistan, even after the incorporation of this amendment it was open to a person sued as a bargadar to set up the defence that he was not a bargadar but a tenant, whether the suit was in respect of a share of the produce for a period prior or subsequent to the amendment. To hold otherwise would, in the opinion of the High Court, amount to reducing the proviso to an absurdity. The language of this proviso has, it appears, given rise to some divergence of opinion both in the Dacca High Court and in the Calcutta High Court. The interpretation of this section first came up for considera tion in the Calcutta High Court in the case of Suresh Chandra Dutta and others v. Mohendra Chandra De and others (34 C W N 845= AIR 1931 Call.91). This was upon a reference from a Munsif under Order XLVI of the Code of Civil Procedure. The letter of reference was a detailed one giving the entire legislative history of this amendment and the decision of the High Court was sought on the question as to whether a Munsif sitting as a Small Cause Court Judge could try a suit for recovery of the price of the crops for the period 1926 to 1928 A. D. where the defence had been set up that the defendants were raiyats in respect of the land and were recorded as such at the time of the Cadastral Survey. A Division Bench of the High Court of Calcutta took the view that the main point raised in the reference was as to whether the amended sub section (17) of section 3 of the Bengal Tenancy Act was retro spective in its effect or not, and in a brief judgment answered the question by holding that it was not retrospective and since the suit was for the recovery of arrears of rent for a period prior to the amendment the Munsif was directed to return the plaint to be filed in a proper Court, so that the suit may be tried by a Munsif under the ordinary procedure. The next case, in which the same question again came up for consideration on an application under section 25 of the Provincial Small Causes Court Act, was the case of Sishu Mohan Koyal and others v. Rajendra Nath Sarkar and others (A I R 1938 Cal.77). There the suit was for arrears of the bhag rent equivalent to share of crop for the period 1933 to 1935 and it was filed in the Court of Small Causes. The facts of the case were that the land was originally in the raiyati holding of the defendants in the suit who in the year 1923 transferred their ralyati interest to the plaintiffs and obtained from them a barga kabuliyat for one year on condition that half the produce grown would be made over to the plaintiffs. After the end of the year the defendants were allowed to hold over on the same terms. They raised the defence that in those circumstances they were to be considered as tenants of the plaintiffs. The Subordinate Judge on perusing the Kabuliyat and having regard to the amendments made in 1928 to section 3 (17) of the Bengal Tenancy Act held that the defendants were not tenants and, therefore, the Small Causes Court had jurisdiction to try the suit. It was urged in the High Court that the Subordinate Judge was wrong in holding that the Small Causes Court had jurisdiction! to try the suit. The High Court held upon the facts of that case that the decision of the Subordinate Court was correct, but whilst considering the provisions of section 3 (17) of the Bengal Tenancy Act observed that "if that amendment applies in this case then it is clear that the defendants as bargadars are not tenants, for, they have not been admitted by the landlords in any document to be their tenants and they have not been held by any civil Court to be tenants," and finally concluded that having regard to the facts of the case before them "there is no doubt that the defendants are bound by the amendments". The earlier case of Suresh Chandra Dutta was distinguished on the ground that there the suit was for a period before the amendment whilst in the latter case the suit was for a period after the amendment. For taking this view reliance was also placed on the case of Digambar Paul v. Tufazuddin Ijaradar (37 C W N 1033=A I R 1934 Cal.80). The Calcutta High Court further came to consider this proviso to subsection (17) of section 3 in the case of Sudhindra chandra Singha Sarma and others v. Java Marak and another (A I R 1941 Cal.717). The land in dispute there had been granted on bhag settlement for three years on condition that six maunds of paddy was given per Arah. The suit was for ejectment. The settlement was granted prior to the amendment of the Bengal Tenancy Act in 1928. The question, therefore, that arose for consideration was whether the grant under those conditions created a tenancy or not. The plaintiffs in the suit contended that the defendants were mere labourers and not tenants. On behalf of the plaintiffs reliance was placed on the amended provisions of section 3 (17), but the learned Single Judge, who heard the case, considered himself bound by the decision of the Division Bench in the case of Suresh Chandra Dutta and held that since the proviso had been held to be not retrospective in effect, it had no application in the case, since the settlement was granted before the proviso came into force. In this connection, however, he observed as follows "That decision is binding on me, even though I might not be prepared to concur in it without further consideration." Lastly the proviso came up for consideration in the case of Abu Nasser Sayedullah v. Abdul Malik alias Mala and another in an application under section 25 of the Provincial Small Causes Court Act. The suit in this case was for the price of barga crops for the years 1956 and 1957. The defence set up was that they were not mere bargadars but tenants paying rent in kind and they had been recorded as such by the Government after the acquisition of the rent‑receiving interests in the Province. They had also been recorded as such tenants in the Cadastral Survey Khatians. The Small Cause Court Judge relying only on the Khatian held that the defendant was a tenant and not a mere bargadar. In the High Court it was argued that the Cadastral Survey Khatian which had been recorded prior to the coming into force of the amendment could not be relied upon, for, whatever presumption it created prior to the introduction of the amendment was no longer available. The cases of Suresh Chandra Dutta and Sishu Mohan Koyal and others were cited before the High Court and the view was taken that the proviso was in the nature of a declaratory provision and, therefore, governed all cases in which the share of the barga produce claimed was for periods subsequent to the introduction of the above amendment. Reliance was placed on the decision of the Calcutta High Court in the case of Rajendra Nath Sarkar and others and the case of Suresh Chandra Dutta was distinguished on the ground that there the suit was for a period prior to the introduction of the amendment. In this view of the matter the amended proviso was held to be applicable to the case and the case was remanded to the Court below for re‑hearing on merits, i.e. for determining whether the defendant in that case was a bargadar or a tenant. In the course of the judgment, however, it was observed that "the Legislature should have introduced clear provisions into the statute to show that the previous provision was not sought to be disturbed if that was its intention." It will thus be observed that there is no consistency of judicial opinion as to the effect of this amended proviso added to subsection (17) of section 3 of the Bengal Tenancy Act in 1928. Most of the decisions starting from the case of Suresh Chandra Dutta have turned on the question as to whether the proviso was prospective or retrospective and in the case now before us the High Court has taken the view that the above quoted observation from the decision in the case Abu Naseer Sayedullah indicated that the last words of the second exception in the proviso had been treated as redundant but with respect it does not appear to us to be so, for, in that event the case would not have been remanded to the Court below for hearing on merits and for deciding the question as to whether the defendant was a tenant or a bargadar. In view of this divergence of opinion we propose to examine this provision untrammelled by any decision. The legislative history of this enactment shows that the Bill, as originally drafted, contained the words "before the commencement of the Bengal Tenancy (Amendment) Act, 1928" after the word "unless" but these words were deleted during the course of the debate in the Legislature. The statement of Objects and Reasons for the Bill declared that "this new provision will apply with retrospective effect even to those cultivators of this class who have been recorded in a record‑of‑rights as raiyats or under‑raiyats" but on the floor of the House the member m charge of the Bill assured the House that those bargadars, who had been recorded as tenants in the record‑of‑rights before the amendment came into operation, would not be affected and the presumption of the record‑of‑rights would still be available to them. It also appears that learned commentators of the Bengal Tenancy (Amendment) Act of 1928 are also not agreed on the exact connotation of this proviso. A proviso, as is generally accepted, is in the nature of an exception to the substantive provision to which it has been appended. In the present case, this proviso has been appended to a definition clause. Normally a definition has the effect of, a declaratory provision and governs all cases coming within its' ambit. In the present case, however, the difficulty that has been created is by the language of clause (ii) of this ,proviso. The words "has been" in this proviso connote of something done in the past but the words "is held" appearing in the same clause being in the present tense would seem to refer to something that is to be done in the present. Since the clause uses both expressions in the alternative in the same clause, the question naturally arises as to what did the Legislature intend by the use of such words. The interpretation of the first part of the proviso raises no difficulty, for, it appears merely to create a new presumption that where a person cultivates the land of another person on condition of delivering a share of the produce under a system generally known as "adhi", "barge" or "Mag" he would not be a tenant unless he came within the ambit of the two sub‑clauses mentioned thereunder. These sub‑clauses are in their turn in the nature of exceptions to the exception created by the proviso itself and, in our opinion, indicate that the presumption created by the substantive portion of the proviso will be rebutted only in the circumstances mentioned in the two subsequent exception clauses thereto, that is to say, only where such a person has been expressly admitted to be a tenant by the landlord in any document executed by him or in his favour and accepted by him or if "he has been or is held by a civil Court to be a tenant." With great respect we find it difficult to appreciate how any question of retrospective operation at all arises in this case. Both the learned Judges of the High Court, who have delivered separate concurring judgments, have been impelled to enter upon discovering as to whether this proviso was retrospective or merely prospective, no doubt, by reason of the emphasis laid on this question in the earlier decisions, but if we may say so again with respect, this was an unnecessary academic exercise, for, the only question here was as to what was the meaning to be given to the words used in clause (ii) of this proviso. It seems to us that the only meaning that can be derived from the use of this curious phraseology ("has been or is held") is that where the status of a bargadar is put in issue in any suit he may establish his status either by proving that he "has been" declared in a previous suit to be a tenant or by establishing his status in that suit itself in which this issue is raised, for, these clauses lay down the only circumstances in which a bargadar may be held to be a tenant after the amendment. A question may well arise as to why this amendment was at all made. If the intention of the Legislature, by this amendment, was to change the law, then what change has it really brought about if it is still to be open to a bargadar to establish his status in a suit, no matter at what point of time it is filed? If this is so, then there has really been no change in the law, because, after the amendment the question will still be a question of inference from cirdurnstances. It seems to us that the` only change that the Legislature has laboured to bring about is to lay down that only in the first instance there will be a presumption that a person holding under a system of "adhi", "barga" or " bhag" is not a tenant but this presumption will be rebutted only, if it is established that he has been admitted by the landlord to be a tenant or is declared in a previous suit to be a tenant or if he can in a suit where this question is put in issue establish his status as such tenant. In effect, it seems, that the Legislature has laboured in vain or worse avoided its responsibility and really thrown the burden upon the Courts to resolve this question, for, the net result appears, in substance, to be to leave the question where it was apart from shifting the burden of proof on the tenant. To this extent possibly there has been a departure from the old principle. In this view of the matter it must follow that this proviso does not debar a person, against whom a suit is now filed for recovery of a share of the crop as a bargadar, to set up the defence that he is not a bargadar but a tenant. In such a suit the presumption of the correctness of the record‑of‑rights may also be invoked in aid as a circumstance supporting the defence but this will certainly not be a conclusive presumption. The presumption that attaches to a record‑of‑right under section 103‑B of the Bengal Tenancy Act is only this that the entry in the record‑of‑right represents the correct state of affairs on the date that it was prepared. Whether that state of affairs is continued even afterwards is not a presumption which arises under this section but under section 114 of the Evidence Act, and its probative value diminishes progressively with the lapse of time. The older the record the less is its presumptive value. This is a matter, therefore, of proof and it merely has the effect of shifting the onus upon the other side. It is certainly not a conclusive proof. In view of the conclusions to which we have arrived as to the interpretation of the proviso added to the definition of a tenant in the Bengal Tenancy Act, it must be held that this proviso does not preclude a person from setting up a defence that he is not really a bargadar but a tenant even in a suit which is filed to recover the share of barga crop for any period after the introduction of the amendment. It remains now to examine one other argument advanced on behalf of the appellant, namely, that in any event the learned Judges should not have decided the case themselves but should have remanded the case to the proper Court for determination of the question as to whether there was a valid tenancy in this case. We are unable to accept this contention. A remand should not be lightly ordered if the evidence on the record is sufficient for the appellate Court to decide the question itself. There can be no bar to the Court doing so. Having examined the reasons given by the learned Judges of the High Court for deciding this question we are unable to say that the evidence was not so sufficient. There was adequate evidence on the record upon which the decision of the learned Judges in the High Court could have been based. We see no reason, therefore, to interfere only on this ground. For the reasons given above this appeal is dismissed with costs. S, A. H./A. H. Appeal dismissed.