Brij Bilas Rai and others vs Sheolagan and others

James, J.—These are two second appeals arising out of two suits for arrears of rent. Each of the defendants is now in possession of one half of what was originally a larger holding, each paying an annual rent of Rs. 23-14-9. The landlord described in each of the plaints a holding something smaller than that described in the Record of Rights, transferring four plots out of the two khatians to a third holding in respect of which he instituted a separate suit. The tenants asserted that their holdings were correctly described in the Record of Rights: and on this question of fact the District Judge of Shahabad, by his appellate decision has found in their favour. It necessarily followed from his decision that the third suit instituted on account of the holding, said to consist of four plots taken out of the two khatians, had to be dismissed, since the learned District Judge found that no such holding existed, so that there could be no liability for rent for it. But the learned District Judge also dismissed the two suits which were described as instituted in respect of the bulk of the area contained in each of the khatians, on the ground that as the suits were instituted in respect of part of the holdings, they could not be decreed.

Mr. Bhubaneshwar Prasad Sinha on behalf of the landlord-appellants argues that mere misdescription of the holding in plaint is not necessarily fatal to a success in a rent suit. In Indu Bhusan Basu v. Jatindra Nath Roy, (1928) 144 IC 148, the plaintiffs suit was dismissed on account of the misdescription of the holding; but in that case the misdescription appears to have been complete, that is to say, the defendant was not the tenant of the plaintiff for any part of the holding for which rent was claimed. In the present case the holding described in the plaint is the holding as described; in the Record of Rights, but with two plots omitted. The question of what is the correct area and rent of the holding has been decided in favour of the defendants; but it does not follow from this that the plaintiffs must necessarily forfeit rent which is found to be due.

The decree of the lower appellate Court will accordingly be set aside and these appeals will be allowed, with proportionate costs, to this extent: that the plaintiffs will obtain a decree for the principal amount of rent due at the rate shown in the Record of Rights, namely. Rs. 24-10-9 including cess. The plaintiffs are not entitled to costs in the original suits or in the lower appellate Court nor to any interest on the arrears due, because it appears that tender of the correct amount was duly made by the defendants, so that although the plaintiff-appellants will be entitled to proportionate costs in these second appeals they must bear the costs of the defendants in the trial Court and in the lower appellate Court.