Akhju Pandey and Others vs Rameshwar pershad Singh and Others

Wort, J.—These are a number of appeals both by the landlords and tenants, that is to say appeals and cross-appeals, The actions out of which the appeals arise were actions for rent for the years 1339 to 1342; and although all the tenants were made parties, one of the tenants alone advanced the case that the tenants were entitled to an abatement of rent by reason of the fact that the irrigation system of the village had been neglected and that the land had consequently deteriorated. It, I should think, went without saying that if it were established that the irrigation had been neglected the land would necessarily suffer until proper repairs were effected; and I suppose to that extent, it could not be said that the deterioration was of a permanent character.

The trial Judge on the plea of the tenant-defendant I have spoken of, allowed an abatement of 8 annas but on appeal to the District Judge that was reduced to 2 annas in the rupee. The learned District Judge advanced many reasons for coming to his conclusion amongst which were the facts that the tenants had not complained until the rent suit had been brought which was a matter of surprise to him if the Commissioner''s report could be accepted; and secondly, on his view of the evidence as I understand the judgment, the irrigation system was not quite in the state of disrepair which the trial Judge seemed to think.

It is abundantly clear to me that in the Court below the main question was whether the tenants were entitled to the 8 annas which had been allowed by the trial Court or not. Perhaps that is the reason why the, Judge did not expressly state any conclusion as to whether the land had deteriorated. But, as I have already stated, if the case is once established that the necessary irrigation scheme had been neglected, it would necessarily follow that the land deteriorated. I see no ground for interfering with the decision of the Judge in. the Court below and I agree with the, reasons which he has advanced for reducing the rent from 8 annas to 2 annas in the rupee. There was hardly anything else which the Judge could have done in the circumstances of the case.

Mr. Sinha on behalf of the landlords contends in his cross-appeals that the ten-ants were not entitled to any abatement at all not only for the reason that the facts did not justify any abatement, a matter with which I have already dealt, but also because only one out of a number of tenants had advanced this case of abatement. Mr. Sinha relies for his contention on the decision in Keshio Prasad Singh v. Mahesardayal Misir AIR (1933) Pat. 607: I say he relies upon that case and a number of cases quoted in that decision, a decision of my brother Dhavle for the proposition he advances. All I need say is that the case has nothing to do with the point. That was a case in which there were a number of persons who were tenants of the holding, and during the pendency of the appeal one of the tenants had died and there had been no substitution.

It in no way dealt with the question whether one tenant on behalf of himself or on behalf of other tenants was entitled to raise the question of abatement; it merely discussed the question whether the right which the tenants had was joint or several or what was it. If it was a joint right and in the circumstances, the right of action did not survive, then it was perfectly clear that in the Appellate Court no relief could be given: otherwise, there would be two conflicting judgments. The cases upon which Dhavle J. relied were similar cases, the chief one being the decision of the Calcutta High Court in Rishee Case Law Vs. Golam Ali Mirdha and Others, where Page J. in delivering the judgment of the Court stated that some only of the tenants were parties. In course of the judgment) he states:

One of the two tenant-defendants has not appeared. The other has pleaded that he is entitled to an abatement of rent on account of diluvion. The fact of diluvion has been established. It appears however that there are two other co-tenants of the holding who are not parties to the suit.

Page J. does not dispose of the point as to what would happen if they all were parties and indeed it would be, in my judgment, a foregone conclusion; a cosharer landlord suing for rent, it has been held, must join his co-sharer landlords. If he were not entitled to join them as defendants to the suit, they refusing to be joined as plaintiffs, the landlord''s right would be frustrated and he could not obtain the remedy which he would otherwise be entitled to. The same with the tenants; as long as they are parties to the suit, one is capable of advancing the case of abatement at all. A suit may be dismissed although the defendants do not appear. It is the duty of the Court to decide what are the facts of the case and if there is anybody to put forward the case that the land has deteriorated on account of neglect of the irrigation scheme, the benefit of that fact, if it be established, enures to all the tenants and not merely those who have advanced the case.

In my judgment, neither does the decision of this Court nor of the Calcutta High Court nor that in the case in Narendra Nath v. Satyadhan Ghosal A.I.R (1920) . Cal. 168 which again was a case in which one of the parties had died, supports the proposition that one tenant cannot on behalf of the others put in a plea of abatement. When I say ''on behalf of others'', I do not refer to the question of agency, but merely to the fact that if one tenant establishes his case, the benefit of that case enures to other tenants as well.

In my judgment for the reasons I have stated, the appeals and the cross-appeals must both be dismissed with costs.