Harnandan Rai and Others and Balwan Rai and Others vs Maharaja Kesho Prasad Singh

Chapman, J.—These two appeals arise out of two suits for the enhancement of rent under the Bengal Tenancy Act. The grounds upon which the enhancement is prayed for are increase in area u/s 52(1)(a) and rise in prices u/s 30(b). The landlord''s case in Suit No. 562 out of which Appeal No l63 arises was that the tenant hell a certain area of land bearing No. 1 and also certain undivided shares in other areas of land which bore Nos. 15 and 25. In the other suit the landlord''s case was that the tenant held a certain specific area of land bearing No. 2, and also undivided shares in certain areas of land bearing Nos. 3 and 16.

The main defence was that the suit was bad for misjoinder of parties inasmuch as the other tenants who held shares in the one case Nos. 15 and 25, and in the other in Nos. 3 and 16 have not been made parties. The finding of the Court of Appeal is in accordance with the landlord''s case, namely, that there is a separate tenancy in each case, consisting of a specific area of land held together with undivided shares in certain other areas of land.

It was contended before the learned District Judge and it has also been contended before us that under the Bengal Tenancy Act a suit for the enhancement of rent cannot be brought in respect of such tenancies. Both Sections 30 and 52 of the Act require that the landlord should be the landlord of a holding, and a holding has been defined in the Act as meaning a parcel or parcels of lands held by a raiyat and forming the subject of a separate tenancy. It is contended that an undivided share in a particular area of land is not a parcel or parcels of land within the meaning of the definition of holding. Therefore the tenancies to which these two suits refer were not holdings within the meaning of the Bengal Tenancy Act, and, therefore, the landlord had no right of enhancement under Sections 30 and 52, inasmuch as he is not the landlord of a holding so far as either suit was concerned.

It has been held in a series of cases Baidya Nath De Sarkar v. Him 25 C. 917 : 2 C.W.N. 44 : 13 Ind. Dec. 597; Hari Charan Base v. Runjit Singh 25 C. 917n. : 1 C.W.N. 521 : 13 Dec. 598; Haribole Brohmo v. Tasimuddin Mondul 2 C.W.N. 680; Ahadulla Sheikh v. Gngan Mollah 2 C.L.J 10; Parbatty Debya v. Mathura Nath Banerjee 15 Ind. Cas. 453 : 16 C.W.N 877 : 40 C. 29 : 16 C.L.J 9 that an undivided share in a parcel or parcels of land is not a holding within the meaning of the Bengal Tenancy Act. There is practically no authority to the contrary, though there is the opinion expressed by Petheram, C.J., in the case of Hari Charan Bose v. Runjit Singh 25 C. 917n. : C.W.N. 521 : 3 Dec. ) 598 where the view taken was that the owner of an undivided fractional share in a parcel of land is the owner of that share in every part of it, and he is, therefore, the holder of an undivided share in every part of it. The weight of authority is on the other side and has ever since been continuously adverse to this view. In our opinion the weight of reason is also on the same scale. It appears to us to be difficult to hold that the word ''parcel'' in the definition of the word ''holding'' can have been intended to mean an undivided share. It is suggested that recourse may be Lad to the preamble to Section 2 in which this definition occurs, where the usual reference is made to the repugnance in the subject or context, but it does not seem possible to say that there is any repugnancy in the subject or context either in Section 30 or much less in Section 52. On the basis of an obiter dictum of their Lordships of the Privy Council it has been held that a right of occupancy can be acquired in an undivided share in a holding, but the reasons for the opinion have not anywhere been stated. In any event the argument which would result in such a conclusion in respect of a right of occupancy would be different from those applicable merely to the interpretation of the definition of the word ''holding.'' The opinion appears to have been given with reference to the former Act of 1869.

The result is that we must hold that in the present instance the tenancies, the rent of which the land lord sought to enhance, were not holdings within the meaning of the Bengal Tenancy Act, and that, therefore, no suit to enhance lay u/s 30 or Section 52 of that Act The result is that the appeals must be allowed and the suits dismissed with costs in all Courts.

Atkinson, J.

I agree.