Kishore Raman Prasad and Another vs Hanuman Singh and Another

Mohamad Noor, J.—This appeal arises out of a suit for rent and the only question involved is the rate of rent.

The admitted facts are these. In village Umapur the plaintiffs and defendants and some other persons held a separate patti of eight annas of the village. The plaintiffs'' share was 2 annas 6 pies, that of the defendants 3 annas and that of he third party 2 annas 6 pies. In this patti the defendants in addition to their having some other land as well, had a holding khata No. 17, of which the annual rent was Rs. 105-8-9. It appears that by some contract this rent was enhanced to Rs. 129-1-6, an enhancement which was undoubtedly illegal under the provisions of Section 29, Bihar Tenancy Act.

Thereafter there was a collectorate partition in which the plaintiffs were allotted a separate estate bearing tauzi No. 2908 for their share in the parent estate including 2 annas 6 pies share of the village in the eight annas patti as stated above. This estate which was allotted to the plaintiffs included five plots out of the holding of the defendants, namely plots Nos. 198, 271 and 305 of khata No. 17, and another plot No. 263 of another khata. By a proceeding u/s 81, Estates Partition Act, the batwara officer fixed Rs. 44-3-7 as the rent payable by the defendants to the plaintiffs. The plaintiffs have sued for rent at this rate. The trial Court decreed the suit according to the claim but the lower Appellate Court has held that as the enhancement of rent prior to the collectorate partition was void u/s 29, Estates Partition Act, the plaintiffs were not entitled to realize at that'' rate. He has therefore given a decree at the rate of Rs. 34.15.3.

Apart from the fact that the learned Subordinate Judge has made an error in calculation and even if his view be accepted, the rent payable will be in the neigh, bourhood of Rs. 36 and not as fixed by him; his view of the law is entirely wrong. He has ignored the fact that the defendants were parties to the partition proceeding both in their capacity as the landlords of the village and also as raiyats and the rents of the plots allotted to the plaintiffs were fixed u/s 81, Batwara Act. It is obvious that the defendants allowed partition to proceed on the basis that the rent for the land held by them was Rs. 129 odd. They themselves got assets in respect of their own share on the basis of that rent. They seem to have raised no objection whatsoever.

Now, having got the advantage of an enhanced asset for the purposes of the partition and having allowed the plaintiffs to get their takhta on that basis, they cannot now be allowed to turn round and say that the rent which was fixed by the Collector u/s 81 was illegal. If a party who has got two capacities in a village both of a landlord and of a tenant allows the partition to proceed on a certain basis and has got advantage under it, he cannot be allowed later on to claim that his right as raiyat has been interfered with and thereby practically ask the whole partition to be reopened: Bhairo Singh v. Rai Shamsunder Prasad A.I.R.1938. Pat. 76. We are not now concerned with what was the rent before the partition. We have got a definite rent fixed by the Collector u/s 81, Estates Partition Act. It is now a rent fixed by the revenue authorities which the plaintiffs are entitled to get from the defendants. That rent cannot in my opinion be interfered with.

The appeal is allowed with costs both in this Court and in the Court of Appeal below. The decree of the learned Subordinate Judge is set aside and that of the trial Court is restored.