A.I. R. (32) 1945 Patna 123

 

A.I. R. (32) 1945 Patna 123

FAZL ALI C. J.

Gobind Mahto and others- Petitioners

V.

Chandra Bhan Prasad Singh and another-Opposite Party.

Civil Reva. No. 725 of 1943, Decided on 15th September 1944, from order of Munsif, Barh, D- 30th November 1943.

(a)    Bengal Tenancy Act (8 of 1885), S. 121- S. 121 applies to bhaoli rent. Section 121 does apply to land held on bhaoli rent: 4

(b)    29 A.1.R. 1942 Pat. 193, Foll.([P 193 C 1) (b) Bengal Tenancy Act (8 of 1885), Ss. 121 and 40-Distraint proceedings-Ex parte tenant-li S, 121 is abused, remedy is provided by S. 140.

Proceedings for distraint should not be regarded as suits; they are not judicial in the sense that the Court proceeds in the absence of the tenants and the landlord comes and gives his evidence ex parte and upon that all that the Court is required to do is to marry the distraint out. If the landlord abuses 8. 121, the remedy is expressly provided by 8. 140: (35) 22 A. I. R. 1936 Pat. 154, Foll. (P 123 C1)

(c) Bengal Tenancy Act (8 of 1885), S. 121- Single application (Qware).

Whether one single application should be entertained for distraint in respect of the produce of a number of different holdings

Dan Sinha and Ramanugrah Narain Sinha - for Petitioners.

Jagdish Singh - for Opposite Party.

Order:--  The petitioners are occupancy tenants of khatas Nos. 69, 111, 138, 122, 192, and 1211 and they pay bhaoli rent for these lands. They have filed this civil revision application against an order passed by a Munsif for the distraint of the paddy crops on these lands under s. 121, Ben. Ten. Act, upon n application made by the landlord claiming arrears of rent for 1350 Pasli at the rate of early Rs. 75 per bigha. After the order of deistraint a petition was filed by the tenants, but the learned Munsif though impressed by the fact that the rent claimed was rather high, alt that he was unable to alter his order. The petitioners have therefore preferred this application against his order. In the first place it is contended on behalf of the petitioners that the section does not apply to land held on bhaoli rent. But a similar contention was overruled in A.I.R. 1942 Pat. 193. Their second contention is that the order of distraint has been made in violation of proviso 2 to the section which is to the following effect:

"An application shall not be made under this section for the recovery of any sum in excess of rent payable for the holding in the preceding agricultural year unless that sum is payable under a written contract or in consequence of a proceeding under this Act or an enactment hereby repealed."

It is stated in the petition that for the Inst 10 years the landlords have not realised rent for the lands of the petitioners at more than Rs. 12 per bigha and that this fact is supported by a number of rent receipts and rent decrees. This contention seems to have greatly impressed the Munsif and it may not be altogether without substance; but as was pointed out by the learned advocate for the opposite party the actual cash amount paid by the tenant in the preceding years is not a decisive factor in this case inasmuch the holdings are held on batai rent. The actual cash amount recoverable in each year will depend upon the prevailing prices and all that has to be seen s whether the landlord is claiming more than his due share of the rent. It is urged on behalf of the opposite party that the landlord claimed 9/20th share of the crops in the preceding year and the same share was claimed in the year 1350. However that may be, in my opinion it is difficult to interfere with the Order of the Munsif in view of the decision of Division Bench of this Court in A. I.R. 1935 Pat. 154. It was held in that case that proceedings for distraint should not be regarded as suits, that they are not judicial in the sense that the Court proceeds in the absence of the tenants and the landlord comes and gives his evidence ex parte and upon that all That the Court is required to do is to carry The distraint out. It was also pointed out that the landlord abuses S. 121, the remedy is expressly provided by s. 140.

It is further contended on behalf of the petitioners that one single application should not have been entertained for distraint in respect of the produce of a number of different holdings. This view is supported by the decision of the Calcutta High Court in 28 cal. 4 but this matter also cannot be investigated by this Court in view of the decision to which I have referred. Besides, this point does not appear to have been included in the objection before the Munsif and I am unable to deal with it on its merits. The application is accordingly dismissed. There will be no order for costs.

Application dismissed.

R.K.