Deo Narain Singh vs Mt. Lila Kuer

Wort, J.—These appeals arise out of two actions for rent, one bhaoli and the other naqdi. Suit No. 11 which is equivalent of second appeal No. 524 of 1934 related to 4 bigas of bhaoli, and Suit No. 14 equivalent to second appeal No. 332 related to 2 bighas of naqdi.

A number of questions arose both as regards the area and as regards the alleged payment, but these have been disposed by the Court below against the defendant and being questions of fact cannot be disturbed in second appeal. The substantial question however is whether there had been apportionment of rent. It is clear from the judgment of the learned Judge in the Court below that parts of these holdings had fallen into the takhta of the plaintiff, and the first question which, appears to have been raised was that the tenants were no parties to the agreement as between the co-sharer landlords, as the partition was effected in the civil Court and was not under the Estates Partition Act. The Judge in the Court below has however come to the conclusion that the agreement is binding upon the tenant appellant for the reason that he had in fact paid rent on previous occasions. Mr. Sarju Prasad who appears on behalf of the defendant appellant relies upon the decision in Mt. Nepur Kuer v. Bhan Pratap 1935 Pat 227. That was a decision of this Court in which certain decrees were being executed and the point for decision was whether the decrees amounted to rent decrees or money decrees. In the course of his judgment in that case my brother Mohamad Noor made this observation:

The civil Court partition is between landlords, and by itself it does not constitute the breaking up of the holding. The holding is a unit for which a certain rent is payable to the landlord. The rent payable is not divisible being a lump rental in respect of the entire holding. The holding can be broken up and rents apportioned with the consent of all the parties concerned, namely, all the landlords and raiyats concerned.

He then goes on to point out that:

There is no procedure in civil Court partition suits under which the tenants can be brought on the record and the rents apportioned after splitting up the holdings.

He then observes which of course, if I may say so, is correct:

What the civil Court partition does is that it changes the position of the cosharer landlords from holders of lands as tenants in common into landlords holding different pieces of land in severalty, but so far as their relation with a raiyat, lands of whose holding have been allotted to the different landlords is concerned, they continue to be his cosharer landlords.

I read the passages for the reason that Mr. Sarju Prasad relies on them for his argument that there was no apportionment in this case. Mohamad Noor, J., in that case referred to an earlier decision of this Court in Ram Lochan Koer v. Jagernath Misser 1916 Pati 79 and pointed out that the observation of the late Mullick, J., that there was no difference between a partition under the Estates Partition Act, and a partition made by a civil Court was in the circumstances of the case obiter, because there was evidence in that case that by payment of rent the tenant had consented. The observation to which reference was made was this:

It has been found by the learned Munsif and affirmed by the learned District Judge by implication that the second party defendants have accepted the splitting up of the whole tenancy by payment of rent according to the civil Court''s apportionment.

Now if it had not been for the view which Mohamad Noor, J., took of that case, he would not have been bound to have come to the conclusion that the decision was wrong, and would have Possibly referred the case he was then deciding to a Bench of Judges for disPosal. His view was that the question was not whether there was an agreement as between the landlords, which was evident as he pointed out in the passage I have read that so far as between themselves they were holders in severalty but whether there was an agreement by the tenant. In the case before me there was no evidence of that whatever. Now had the view been one which Mr. Sarju Prasad presses upon me, that it was necessary to have an agreement made between the parties at a time when the parties were present, as I have already said and repeat, it would have been necessary for the learned Judge to have come to the conclusion that the decision of the late Mullick, J., could not have proceeded on the fact that there was evidence and finding to the effect that the tenant had agreed to the splitting up. It must be noticed that Mohamad Noor, J., clearly points out, as I have said, that as between the cosharer landlords they held the land in severalty. Now one of the earliest decisions on the question was the decision in Anoo Mundul v. Shaik Kamaloodeen (1878) 1 CLR 248. There a cosharer had sued for rent. There was no evidence whatever of any agreement as between the landlords, and in those circumstances the learned Judge decided that the mere fact of payment of rent by the defendant was no evidence of such an agreement. What was missing in that case was an agreement as between the landlords. In the view which Mohamad Noor, J., took in the case cited, it is quite clear that the real question in cases of this kind is whether the tenant has agreed, and this view is supported by the contention, which is always advanced in such cases, namely, that excepting under the Estates Partition Act there is no procedure by which the tenants themselves can be brought on the record or can be brought before the Court to show that they have agreed to the partition which is about to take place or has taken place between the cosharer landlords.

In this case, according to the finding of the learned Judge in the Court below, there was evidence that the tenant had agreed and thus the agreement between the necessary parties was in my judgment complete. As to the question whether there was evidence that the tenant had agreed, it was in the circumstances of the case a question of fact. Had the learned Judge come to the conclusion that there was no evidence or that the evidence in no circumstances could have been held to be evidence of an agreement, a question of law might have arisen. On the facts as found, and in the circumstances, so far as the question of agreement by the tenant defendant is concerned, no question of law arose. The appeals therefore fail and must be dismissed with costs. Leave to appeal under the Letters Patent is refused.