Matber Singh and Another vs Rai Krishna Bahadur and Others

James, J.—These appeals arise out of three suits for arrears of rent. The plaintiff claimed as landlord in respect of a one-third share of his patti but the tenant-defendants took the defence that he was entitled only to a share of one-sixth. The parties were also'' at issue regarding the rate of rent which was payable for this land, and the defendants further claimed that during the years in suit the greater part of the land had been unfit for cultivation. On these points the Courts below have found against the tenant-defendants, who have now come up in second appeal from the decree.

Mr. Hareshwar Prasad Sinha on behalf of the defendants argues in the first place that the suits could not be treated as properly framed u/s 148-A, Bihar ''Tenancy Act, because all the co-sharers who are named in Register D have not been joined as defendants; and further that since the plaintiff is recorded in Register D for a share of two annas eight pies, he cannot now claim a larger share. In support of this last ground of appeal, Mr. Hareshwar Prasad Sinha cites the decision of this Court in Sarafat Karim v. Harangi Singh (Second Appeals Nos. 395 to 397 of 1929); but in that case the plaintiff who was recorded in the khewat and Register D for a share of six annas claimed that he had obtained title to the ''whole sixteen annas by adverse possession. It was held that he could only claim the -share for which he was recorded in Register D. It has not been held, and it never could be held, that the holder of a separate patti can recover in his patti nothing more than the share calculated in terms of the whole mahal which is entered in Register D.S. 148-A, Bihar Tenancy Act, requires the plaintiff to join as co-defendants only the other landlords of the holding, not the other proprietors of the estate, and for whatever share the other proprietors may be recorded in Register D, they are not in the sense in which the word is used in the Tenancy Act landlords of these holdings unless they are actually co-sharers in the patti within which the holdings lie.

The question of whether there has been pattidari division of this kind is a question of fact, but Mr. Hareshwar Prasad Sinha objects that in arriving at their decision, the Courts below have relied on inadmissible evidence, or on documents which were not properly proved. A written statement which purports to have been filed by the defendant Matber Singh in a case u/s 144, Criminal P. C, was put in evidence, but although objection was taken at the time no attempt was made by the plaintiff to connect this written statement with Matber Singh, that is to say, there is no evidence that he filed it or that he authorized the filing of it.

Another piece of evidence to which Mr. Hareshwar Prasad Sinha takes objection is a judgment (Ex. 8-A) wherein this question of the existence of the pattis was discussed in a case to which Matber Singh was not a party. The learned District Judge has remarked on the written statement (Ex. 5) that the appellant Matber Singh said therein that the plaintiff had settled the land in dispute with him, and that he did not suggest there that co-sharers of the other patti had any concern with the land. The learned District Judge also referred to the judgment (Ex. 8-A) relying on it as an expression of judicial opinion, wherein he was in error. Mr. Hareshwar Prasad Sinha also objects to the admission of the judgment (Ex.8-B); but that is certainly admissible, because all the persons who are parties here were parties to that litigation, and the judgment is certainly evidence of what were the points in issue between the parties in that suit and of what was the result of the suit. In that case Chabi Lal Raut sued Matber Singh in ejectment, joining as defendants the landlords who are parties to the present suits. He also joined Rai Bahadur Raghunath Prasad, whose widow is now put forward as a co-sharer who ought to have been joined in the present suits. Chabi Lal Raut claimed that he had obtained settlement from Rai Bahadur Raghunath Prasad, and that this gave him title to the land of which Matber Singh had taken possession. Matber Singh defended the suit on the ground that this diara land lay in the eight annas patti of Rai Krishna Bahadur and the other two parties of the present suits, and that Rai Bahadur Raghunath Prasad had no concern with it, because the land did not lie within his patti. Matber Singh succeeded" in his plea and the attempt to eject him failed.

Apart from Ex. 8-B there is a great deal of other evidence on which the learned District Judge has relied. He has relied only to a slight extent on Ex. 5 and Ex. 8-A and unless the provisions of Section 167, Evidence Act, are to be completely ignored, it would be impossible to hold that the admission of these two documents in any way vitiates the finding on this question of pattidari possession.

The document, Ex. 5, is mentioned again by the learned District Judge in dealing with the question of what is the rate of rent; but it does not appear that the rate of rent appears in that written statement. The learned District Judge remarks that Matber Singh said there that he had obtained printed receipts from his landlord; but he does not now produce any. Here again a mass of documentary evidence was produced on behalf of the landlord which the learned District Judge accepted as true and the casual reference to the written statement, Ex. 5, is of no importance.

The defendant claimed that the land in suit was entirely sandy during the years in respect of which rent was claimed. The argument at the trial was interrupted for the deputation of a commissioner who reported on the present condition of the land, to which Mr. Hareshwar Prasad Sinha takes objection, though it does not appear that any objection was taken at the time of the deputation of the commissioner. Mr. Hareshwar Prasad Sinha points out that the commissioner reported that certain land was not fit for cultivation and probably never had been; but this was land outside the area mentioned in the plaint, of a holding wherein the plaintiff claimed rent for twelve bighas whereas Matber Singh said, he possessed twenty-four. For the rest the present condition of the land did not prove in itself what had been the condition during the years in suit; but this fact did not escape the notice of the learned District Judge who decided the point on the evidence which was before him.

I find no ground for interference with the decision of the lower appellate Court and these appeals must be dismissed with costs.