Mod. Ali and Others vs Bhagalpur Tannery

Macpherson, J.—This is an appeal against the decision of the Additional Subordinate Judge of Bhagalpur affirming that of the Munsif of that place in which a rent suit at bhaoli rates was decreed in part. The appeal is preferred by the tenants.

The defendants appellants were recorded in 1908 as occupancy raiyats of a bhaoli holding of 528 acres in Akbarnagar under Mr. Grant as mukarraridar and Srimohan Thakur and others as 16 annas proprietors. In 1907 the mukarraridar sold his interest to Pranmohan Thakur, 12 annas proprietor, who thus became the 16 annas landlord of the mukarrari. According to the plaint the successors-in-interest of Pranmohan on 30th July 1921 leased their mukarrari interest to the plaintiffs.

Meantime, however, the appellants had applied in February 1921 for commutation of the bhaoli rent and made the son of Srimohan Thakur and the trustees of the estate of Pranmohan Thakur, as well as the executor of the estate of Ugramohan Thakur, that is to say, the 16 annas proprietors, the respondent or opposite party to the proceeding. When the proceeding had reached a comparatively late stage the plaintiff on 5th December 1921 filed an objection claiming to be one of the landlords in the case and he was directed to appear with evidence six days later. This is found from the order sheet of the proceeding. Eventually the decision of the Deputy Commissioner was that the plaintiff had no locus stand in the case and that in any event his objection that the present appellants, then applicants, were not raiyats but under-raiyats were erroneous. The result was that a rent of Rs. 7 per acre was fixed.

Dissatisfied with this order the respondents brought a rent suit at bhaoli rates. It may be mentioned that the raiyat had paid the previous laudlord the rent of Rs. 1,328 and had deposited in Court the cash rent for 1329 to 1332. The Courts below have rejected, the claim for the rent of 1328 and have allowed rent for the other three years at Rs. 281 with damages at 25 per cent.

In support of the appeal substantially two points were taken on behalf of the defendants appellants, the first, that no notice u/s 72, Ben. Ten. Act, was served upon them. This point has been decided adversely in the lower Courts and it is quite clear that the appellants had ample notice in the proceedings in the criminal Court u/s 424 brought against them by the respondents.

The second point is that the commutation proceedings are valid as against the respondents. It is urged that the issue was properly joined at the outset in those proceedings and that the substantial point at issue, namely, whether these appellants were raiyats or merely under-raiyats was actually decided. But an examination of the papers connected with those proceedings goes to show that the appellants did not clearly understand their own position. They were raiyats of the trustees of Pranmohan Thakur mukarraridar, but the opposite party whom they named in the proceeding was not their own landlord but the zamindars of the village. Accordingly at no stage was the issue properly joined. It is true that the trustees of Pranmohan Thakur were parties but qua zamindars and not qua mukarraridars. The lessee from the trustees of Pranmohan Thakur became from the date of his lease the landlord of the petitioners. In the proceeding under Rs. 40, Ben. Ten. Act, it might be that if his lessor had been properly on the record the lessee would be bound by the decision; but as that was not so, and as his own application to be made a party was not entertained on the ground that he had no locus stand and as consequently he had no opportunity of contesting the application or the rent fixed, the proceeding and the rent therein fixed are not binding upon him.

It is not a case where he had a right of appeal to the revenue Court. Also no commutation u/s 40 is possible where the landlord is not before the Collector Accordingly the appellants are liable to pay to their landlord, the lessee respondents, bhaoli rent and not the cash rent deposited to which it has not been validly commuted. This plea fails.

I would, therefore, dismiss this appeal with costs.

Fazl Ali, J.

I agree.