Maulavi Masud Ahmed vs Jagan Singh and Others

Jwala Prasad, J.—This appeal arises out of a suit for rent. The plaintiff who is the appellant is a co sharer landlord. He instituted a suit coder Section 148A of the Bengal Tenancy Act, (making his so sharers as defendants in this suit) on the following allegations in the plaint:

(1) The collection of rent in respect of the plaintiff''s share is separate from those of his other co-sharers. (2) Although the collection of the plaintiff is separate from that of the defendants, the plaintiff in order to obtain the single rent-decree enquired of the defendants Nos. 3---13 (the co-sharer landlords) regarding the arrears of rent payable to them by defendants Nos, 1 and 2 (the tenants). But neither they said what amount was due to them nor did they agree to join in this suit. The plaintiff believes that the proportionate arrears of rent payable to them has already been realised by them. Hence he institutes this suit treating the amount due to him as the entire arrears of rent.

The amount actually claimed happens to be what the plaintiff claims as his share of the entire area. The defendants raised all sorts of pleas such as plea of payment etc., and also urged that the suit was not maintainable u/s 148A of the Bengal Tenancy Act.

The Sub-Judge, who triad the suit, overruled all the pleas of the defendants except the last one. He held that the plaintiff''s suit was defective and did not conform to the rules laid down u/s 148A of the Bengal Tenancy Act, The District Judge on appeal by the, plaintiff agreed with the view taken by the, Munsif that the suit was not maintainable u/s 148A of the Bengal Tenancy Act and dismissed the appeal. The plaintiff has came to this Court in second appeal. The learned District Judge does not seem to have considered the provisions of Section 148 A. He found that there were conflicting rulings of the Calcutta High Court and of this Court and be was of opinion that the facts of this case agreed more with the facts covered by the Calcutta decision in the case of Baikantha Nath Sen v. Ramapati Chatterjee 45Ind. Cas. 767 : 27 CLJ 101. On the other hand, the, appellant ralies upon the case in Brohmanand Nath Deb Sarkar v. Bern. Chandra Mitra 23Ind. Cas 981 : 18 CWN 1016. decided by the game learned Judge, Mookerji, J., who decided the case in Baikantha Nath Sen v. Ramapati Chatterjee 45Ind. Cas. 767 : 27 CLJ 101. All these canes, however, teem to have been considered by this Court in the case of Bam Dhyan Singh v. Pardip Singh 53Ind. Cas. 91 : 4 PLJ 500. Manuk, J, went elaborately into the genesis of the section. The decision of their Lord, ships of the Judicial Committee in the case of Pramada Nath Roy v. Ramani Kanta Roy 35 AC 381 : 7 CLJ 139 : 12 CWN 249 : 10 Bom L 66 : LR 35 I. A. 73 : 18 MLJ 43 : 3 MLT 151 (PC). lays down the principles which should guide the Court, in determining whether a suit really tomes u/s 148A or not. His Lordship Mr. Justice Manuk held (1) that the essential principled underlying the Section 148 A are that the suit should in form be for the whole rent and in sub-stance for the separate there of rent in arrears; (2), that the whole body of landlords ere impleaded with the allegation that the plaintiff has not been able to ascertain what, if any, rents are due to the former. In such cases the whole rent due must, in the nature of things, be always a matter of speculation for the plaintiff and be is entitled to assert that he believes that his share of the rent due is the entire rent due and ask the Court to decide on the accuracy of that belief; if aid when the impleaded co sharers appear and claim any arrears as due to themselves. We entirely agree with the enunciation of the principles laid down by Manuks, J., and we think that the facts laid in the plaint aid the relief sought conform to these principles.

It is, however, contended that the plaintiff in paragraph 5 alleged that his share of the rent collection is separate from those of the other co-sharers, whereas the Court below has held that the collections of the plaintiff and of all the co-sharers were joint and, therefore, tie plaintiff''s allegation in the plaint upon which the suit is founded is false and the suit must be dismissed for want of cause of action. I fail to appreciate the force of this contention, for it is conceded that if the plaintiff bad alleged what the Court has held that the collection of the plaintiff arid his co-sharers was joint the plaint was entertainable and the came of action for rent was not at all against the principles of Section 148 A.

Upon the facts found by the Courts below and the plain meaning of Section 148A, which is the result of great deliberations in order to meet conflicting Aiding authorities at that time, the plaintiff''s suit comes, well within that section; and it is, therefore, held that the Court below was wrong in die musing the suit upon the ground that it was not maintainable u/s 14 8 A. We set aside the decision of the Court b low and remand the case for disposal by that Court pp its merits,

This order will govern the analogous appeals Nos. 041--43 of 1920. The appeals are decreed with costs.

Bucknill, J.

I agree.