Jeonandan Singh vs Janki Singh and Others

This appeal under Clause 10 of the Letters Patent arises out of a suit which was instituted u/s 148-A, Bihar Tenancy Act, for recovery of rent for the Fasli years 1337 to 1340 in respect of a holding which originally was contained in khatians Nos. 222 and 921 of the Record of Rights. The defendants-tenants claimed that their holding included a further area of l� acres which they said had been settled with them at a total rental of Rs. 42-14.3.

In 1923 the landlords instituted a suit claiming produce rent for the area contained in khatians Nos. 222 and 921 which was resisted by the defendants on the ground that they held nine bighas of land at a rental of Rs. 42-14-3, that is to say that their holding at this rent included also 1 1/2 acres out of plot No. 3751 which had been settled with them and that the whole had now been consolidated into one holding.

The finding in that case was that the tenants occupied a holding of nine bighas at a cash rental of Rs. 42-14-3 and the suit for arrears of produce rent was dismissed. An appeal to the District Judge was dismissed on 28th April 1925. In the present suit the Munsif found that the defendants-tenants had proved as a fact that their area and rental were as they described, apart from the question of whether the matter was made res judicata by the decision in the earlier suit. As the defendants admitted that the money which the plaintiffs claimed was due on account of rent, the Munsif gave a decree which was to have the effect of a mere money decree, allowing to the plaintiffs no damages or costs.

On appeal, the District Judge of Patna relying on the decision in Kesho Prosad Singh v. Mathura Kuer reported in AIR 1922 Pat. 608 dismissed the plaintiff''s suit. On second appeal to the High Court, a Judge of this Court has restored the decree of the Munsif.

The learned advocate for the appellants-tenants relying on the decision in Kesho Prosad Singh v. Mathura Kuer reported in AIR 1922 Pat. 608 argues that in the circumstances the whole claim of the land-lords should have been dismissed. He suggests that in the later decision in Rambeas Tewari and Others Vs. Akhauri Raj Mohan Sahay and Others, the rule which was laid down in Kesho Prosad Singh v. Mathura Kuer reported in A.I.R.1922 Pat. 608 ought to have been applied, because that decision had not at any time been overruled by the decision of a larger Bench.

The learned advocate points out that this was the view recently taken by Wort J. in Ram Chandar Mahton v. Ram Gulam Mahton reported in AIR 1938 Pat. 305, but it would appear on the face of it that the facts of that case did not in any way resemble the facts of the present case. It is necessary to speak with some reserve regarding the decision in Ram Chandar Mahton v. Ram Gulam Mahton reported in AIR 1938 Pat. 305, because we understand that that decision is under appeal; but in that case it appears from, the facts found that the plaintiffs had instituted a separate suit for one-third of art undivided holding, reserving the right to institute a separate suit for the remaining two-thirds.

In the present suit we are bound by the findings of fact of the trial Court which were affirmed on appeal. The learned advocate for the plaintiff-respondents suggests that the decision in the former suit ought not to have been held to operate as res judicata; but the matter was directly and substantially in issue between the parties in the former suit and actually formed the basis of the decision in that suit, so that no argument can be based on the ground that the matter was not res judicata before the institution of the present suit. Apart from that question, the learned Munsif found on the evidence before him that the plaintiffs'' holding was a holding of nine bighas.

The provisions of Section 148-B, Bihar Tenancy Act require that the plaint shall contain a statement of the situation, designation, extent and boundaries of the land held by the tenant.

u/s 56 of the Act, the tenant who makes a payment is entitled to a receipt giving the particulars contained in Schedule 2 of the Act; and it may certainly be said that a tenant cannot properly be expected to confess judgment or to satisfy the claim for rent contained in the plaint unless the plaint should be in such a form that on his satisfaction of the claim for rent he would obtain a quittance of the nature described in Section 56 ; that is to say that the plaint must correctly specify the area held by the tenant.

The tenant is therefore entitled and obliged, when faced with a plaint which describes incorrectly the area of his holding, to raise the issue of what is the correct area, and when that question is brought into issue and decided in the tenant''s favour, it is clear that the tenant is entitled to costs on account of this contest which has been forced upon him. further, as the learned Munsif has pointed out in the present case, the fact that the landlords have been manifestly unwilling to give a quittance in the manner prescribed by Section 56 of the Act may be held to disentitle the landlord to any claim for damages or interest on account of the rent withheld.

The question remains of whether the landlord is entitled to any decree on account of the money which the tenant admits to be due to him. If the finding should be that the tenant has been ejected by the landlord from a portion of his holding, the tenant would be entitled to suspension of rent until the whole of his holding should be restored to him; but where the finding is that the tenant is in possession of the area which he claims and that there has been no ejectment by the landlord, ought the landlord to be deprived of the whole of the rent which the tenant by his defence has admitted to be payable? In our judgment he should not. A suit for arrears of rent is a suit of a double nature. It is ordinarily a suit to enforce the charge upon the holding which is created by the provisions of Section 65, Bihar Tenancy Act; but a decree which has the effect of enforcing this charge can only be made when the plaint is framed in such a manner as to comply exactly with the provisions of Section 148 of the Act. But the suit does not necessarily fail because a decree cannot be made enforcing the charge in such a manner as to entitle the purchaser at a sale in execution to annul all incumbrances.

The suit is also a suit to enforce the personal liability of the tenant to; pay a certain sum of money to the landlord and a decree may be made enforcing this liability where a decree cannot be made enforcing the charge u/s 65 of the Act. A money decree of this kind may properly be given in such a case as this, where o Tying to the existence of a dispute regarding the real area of u the tenancy the landlord has in the description given in the plaint omitted to mention certain plots which formed part of the tenant''s holding. The landlord must in such a case pay to the tenant the costs of the contest which he has forced upon him, and since it appears that he has not been willing to give a quittance in the manner required by law, he may be allowed no damages or interest on his claim; but for the rest, we would prefer on the whole to accept as correct those decisions which permit the landlord to obtain a money decree for the actual arrears of rent which are found to be due to him.

The result is that the decision of the Judge of this Court restoring the decree of the Munsif is confirmed, but with this modification that the defendants will be entitled to their costs in the trial Court. We make no order for costs in this Court.