Kuldip Saran Singh vs Raghunandan Singh and Others

Ross, J.—This is an appeal by the plaintiff in a suit for enhancement of rent. The Munsif decreed the suit for enhancement at the rate of 5 annas 3 pies in the rupee. Before the Subordinate Judge in appeal that rate was questioned but this point was decided in favour of the plaintiff. The suit was, however, dismissed on the ground that it was brought by the plaintiff alone although admittedly he had an infant son, and u/s 188 of the Bengal Tenancy Act the suit had to be brought by all the landlords and was, therefore, not maintainable by the plaintiff only.

The learned Subordinate Judge relied on the decision in Satiprosad Garga v. Radhanath Maity [1912] 16 Cal LJ 427 and in Raja Sati Prosad Garga Bahadur v. Sonaton Jhara AIR 1921 Cal 591. In both of these cases the same point was decided and on the same grounds; and in fact in the second the first decision was quoted. Now all that was decided in that case was that a suit for assessment of rent for excess land instituted by some of the members of a joint Mitakshara family, cannot be considered as instituted by them as agents for other members, authorized to act on behalf of all the landlords within the meaning of Section 188 of the Bengal Tenancy Act. It was pointed out that the Legislature has expressly provided for the performance of such an act, not only by the entire body of the joint landlords but also by their representative. In that suit it could not have been argued that the plaintiffs were acting in a representative capacity because more than one member of the joint family had brought the suit without including the other members. The present suit is entirely different. The sole plaintiff is not only the karta, but he is the sole recorded landlord of this touzi The principle applicable in such a case has been laid down by this Court in Hazari Lal Sahu v. Ambica Gir AIR 1924 Pat 104 it was said in dealing with the question of applicability of Section 188 in the circumstances of that case which dealt with an application u/s 105 of the Bengal Tenancy Act:

All the recorded proprietors of the touzi are named as applicants in the application and in the absence of the name of Sukhram Singh, even if he be the managing member, will not make the application illegal if the persons who are recorded as proprietors are all joined in the application. I am, therefore, of opinion that the learned Special Judge was wrong in holding that the application u/s 105 could not be maintained by reason of the provisions of Section 188 of the Bengal Tenancy Act.

It is true that in that case the decisions upon which the learned Subordinate Judge relied were not cited, but the principle is laid down and there is nothing in these decisions to conflict with that principle. In my opinion the suit was properly constituted and the plaintiff is entitled to a decree for enhancement at 5 annas 3 pies in the rupee.

The appeal must, therefore, be decreed and the decision of the Subordinate Judge set aside and that of the Munsif restored. As the respondents do not appear there will be no cost'' in the appeal, but the plaintiff is entitled to ''the costs in the lower appellate Court.

This judgment will govern Second Appeals Nos. 268 to 271 also.

Kulwant Sahay, J.

I agree.