Mt. Nepur Kuer and another vs Bhan Pertap

Mohamad Noor, J.—These miscellaneous second appeals arise out of execution proceedings of rent decrees. The appellants and the respondents are cosharer landlords of certain villages. The latter instituted rent suits framed under S. 148-A, Bengal Tenancy Act, against certain raiyats of the villages and proceeded for his own share of rent. The appellants were of course pro forma defendants in those suits. Decrees for rent were passed on 14th December 1933. In the meantime the villages were partitioned, and a final partition decree was passed on 23rd December 1933. By this partition portions of the holding of the raiyats were allotted to the appellants and portions to the respondents. Later on there were certain amendments in the decree, but that is immaterial for the purpose of the present appeals.

The respondent proceeded to execute the decrees, but the appellants, his co-sharer landlords objected to their being executed as rent decrees on the ground that as portions of the holdings for the rent of which the decrees were passed had fallen into their takhta, the respondent was no longer landlord of those portions and consequently could not proceed to sell them as parts of the holding. They contended that the decrees could be executed only as simple money decrees, and only the right, title and interest of the raiyat judgment-debtors could be sold and not the holding itself as it stood before the partition. They contended in fact that the original holding did not exist as it was broken up. This objection prevailed before the learned Munsif. Thereupon the decree-holder, who is respondent in this Court, appealed to the District Judge who has reversed the decision of the Munsif holding that the decrees could be executed as rent decrees and the entire holding could be sold as such in spite of the fact that a portion of the holding had fallen by a civil Court partition into the takhta of the appellants. The appellants have preferred these second appeals. The first objection raised is that no appeal lay to the District Judge. This question has been dealt with and rightly decided by the learned District Judge. No doubt the appellants appealed before the executing Court in pursuance of notices under S. 158 (B), Bengal Tenancy Act, but nevertheless they raised a question which related to the execution and satisfaction of the decree and it was certainly a matter between the parties to the suit. It has not been contended that S. 47, Civil P.C., is not applicable to execution proceedings of rent decrees. In my opinion the appeal lay to the District Judge.

The next contention is the reiteration of the points taken by the appellants before the Munsif and the learned District Judge, namely that the civil Court partition constituted the breaking up of the holdings of the raiyats, that the decree-holder ceased to be landlord of those portions of the lands winch fell into the takhta of the appellants, and these cannot be sold in execution of these rent decrees. Reliance is placed upon a decision of the Judicial Committee which was cited before the Courts below, Forbes v. Maharaj Bahadur Singh, 1914 P C 111 = 23 I C 632 = 41 A 91 = 41 Cal 926 (PC). In my opinion there is no force in this contention. The civil Court partition is between landlords and by itself it does not constitute the breaking up of the holding. The holding is a unit for which a certain rent is payable to the landlord. The rent payable is not divisible being a lump rental in respect of the entire holding. The holding can be broken up and rents apportioned with the consent of all the parties concerned, namely all the landlords and raiyats concerned. There is no procedure in civil Court partition suits under which the tenants can be brought on the record and the rents apportioned alter splitting up the holdings. What the civil Court partition does is that it changes the position of the cosharer landlords from holders of lands as tenants in common into landlords holding different pieces of land in severalty, but so far as their relation with a raidyat, lands of whose holding have been allotted to the different landlord, is concerned they continue to be his cosharer landlord. Before the partition each cosharer had his undivided share extending over the entire holding; after the partition each co-sharer holds different pieces of the land comprising the holding in severalty, but the holding is, still a holding under all the landlords taken Is a whole, and from the raiyat''s, point of view all of them taken together will be his landlords. This seems to be the view taken by the Calcutta High Court in Duk Haran Singh v. Mt. Bibee Soghra, (1908) 12 C W N 568.

Now S. 148-A, Ben. Ten. Act, contemplates a suit for the entire rent of the entire holding, but the section under special circumstances allows a co-sharer landlord to proceed with the suit for his own share of rent only i.e. when he is unable to proceed for the entire rent. A suit so framed, when it proceeds for a share of rent only, proceeds for a portion of the rent of the entire holding and not for the entire rent of a portion of the holding. The position is exactly the same as if the sole landlord of a holding brings a suit for a portion of the rent only, the other portion having been realised or become time barred. A decree passed in a suit framed under S. 148-A, Ben. Ten. Act, is in effect a decree in favour of all the landlords for the entire rent then due. I am clearly of opinion that the special provisions of S. 148 continued to be applicable even after the partition when different pieces of land comprising the bolding have been allotted to different landlords. The position would have been certainly different if by the partition the decree-holder had ceased to be the landlord of the holding at all, namely if the entire holding had been allotted to the takhta of co-sharers other than the decree-holder. But here the decree-holder continues to be the co-sharer landlord of the raiyat. The only change in his position has been that instead of his interest being an undivided share in all the lands comprising the holding it has now become an entire interest in a portion of the holding. The position will be clear if I give an example. Suppose A and B are proprietors of two distinct pieces of land each having an entire interest in his own piece of land. These two jointly make a raiyati settlement with C. It is obvious that A and B are joint landlords of C and there is nothing in S. 148-A, Ben. Ten. Act, which prevents any one of them from proceeding under that section. The position is in no way different from the position in which A and B hold the undivided shares in a bit of land and jointly lease it out to C.

Mr. Sarju Prasad however contended that the civil Court partition affects the breaking up of the holding. He has relied upon a decision of Mullick, J., in Ram Lochan Koer v. Jagernath Misser, 1916 Pat 79 - 37 I C 440 - 1 Pat L J 270. In my opinion that decision does not support the contention of the learned advocate. The observations on which he has relied were obiter dicta inasmuch as there was evidence in the case on which the learned Judge relied that the tenants had consented to the apportionment of rent. Secondly, his Lordship relied upon a decision of the Calcutta High Court in Protab Chandra Das v. Kamla Kanta Shaba, (1906) 10 C W N 818, where it was held that there was nothing in the Estates Partition Act to prevent the partition of a tenancy into separate tenancies without the consent of the tenants, and on general principle the Court did not see any reason why such a partition could not be made. Mullick, J., then proceeded to say that he saw no difference in the matter of partition of tenancies under the Estates Partition Act and a partition made by a civil Court. With all respect to the learned Judge there is a good deal of difference in procedure. In the Estates Partition Act the tenants come in, and there are various provisions in which the officer carrying on a partition has been given the power of fixing rent, etc The rents are attested and the tenants have got a voice. Under the civil Court procedure the proceedings are entirely between the landlords, and the tenants have got no locus standi whatsoever. It does not require much reasoning to hold that any apportionment of rent between the co-sharer landlords without the consent of the tenants is not binding upon them. It is not urged in this case that these raiyats were ever in any way parties to the partition proceeding. In fact the learned District Judge has observed that it was not suggested before him that the tenants consented to an apportionment of rent. Mr. Sarju Prasad has however urged that after the objection of the appellants was allowed by the first Court there was an objection by the raiyats also who admitted the apportionment of rent, thereby indicating that the holding had been spilt up and the decree-holder ceased to be the landlord of those portions of the holding which fell into the takhta of the appellants, No such admission is before me nor am I aware under what circumstances it was made. It is clear from the decision of the learned District Judge that there was no suggestion before him that the raiyats had consented to the apportionment of rent, or in other words that there was a breaking up of the holding of the raiyats after the partition with the consent of all the landlords and raiyats.

In my opinion the view of law taken by the learned District Judge is correct. The appeals are dismissed with costs. There will be one set of hearing fee only.