Raja Surajpal Singh vs Ramgati Singh and Others

Imam, J.—This is an appeal by defendant 1 against the decision of the Subordinate Judge of Arrah who affirmed the decision of the Munsif of Buxar. The plaintiff had1 sued for recovery of arrears of rent for the years 1347-1350 in respect of 7.09 acres of land. The plaintiff alleged to be the malik of four annaa share in the takhta. in suit by virtue of a rehan deed executed in his favour by defendants 2 to 6. Defendant 1 is also a cosharer malik of that takhta. He had purchased the rent claimed land from the original raiyat at ft rent sale. According to the defendant, he had settled the land after his purchase with Nathun Mahton who, he alleged, is a necessary party to the suit. His further defence was that the rent had been reduced by the Rent Reduction Officer and he was liable to pay rent at that rate to the plaintiff for his proportionate share and not at the original rate. Both the Courts below, as I have already indicated, rejected his defence and decreed the suit at the rate of rent claimed in the plaint.

Mr. Kanhaiyaji on behalf of the (appellant (defendant 1) has raised three points. The first point was to the effect that Nathun Mahto was a necessary party to the suit, having regard to the provisions of Section 22(2), Bihar Tenancy Act. The ''second point urged by him was that the rent was properly reduced by the Rent Reduction Officer and, and therefore, the plaintiff could not get a decree at the original rate of rent. His third point was that the plaintiff mentioned in the plaint that1 the annual rental for the holding was Rs. 41-15-3, but had been given a decree for his share at the rate of Rs. 7-9.3.

As to the first point, as far as I have been able to understand the submission of Mr. Kanhaiyaji, it ia that when a odsharer purqhasea ajj, occupftncy right in land, of a tenant in whom all the cosharers are interested, he holds the land subject to the payment to his co-prpprietora. or the share of the rent which may be from time to time payable to them, If he inducts on to the land a third person such third person may either be a tenure holder or a raiyat of the'' until, Defendant 1 having settled the land with Nathuh Mahtont Nathun Mahton became the raiyat of the land and it wag necessary to make him a rtyat the suit. In my opinion, Nathun Mahfcon might have been a proper party, but certainly was not a necessary party. As between defendant, X and his cosharers, the only matter for decision was as to the liability of the defendant towards his cosharers for the rent of the land purchased by him from the original tenant. Section 22(a) clearly recognised that when an occupancy right in land is transferred to n person Jointly interested in the land as proprietor, he shall be entitled to hold the land subject to the payment to his go-proprietors this share of the rent which may be from time to time payable to them. The fact that he sublets the land to some one else cannot deprive his co-sharers of the right to realise from him their share of the rent which may be from time to time payable, In Kirtya Nanda v. Ram Lal AIR 1926 Pat. 580 Ross J. observed with reference to Section 22(2), Bihar Tenancy Act, as follows:

The question is not free from difficulty; but it is important to observe the exact language of Section 22(2). It is not enacted that if the transferee sublets the land to a third person, such person shall be a tenure holder on a raiyat, as the case may be, in respect of the land, but that gush person shall be deemed, to be a tenure holder or a raiyat; that is to say, the section itself recognises the relationship m artificial and, by implication suggests that, by making such a settlement, the transferee is not a landlord, but that the peculiar status conferred Upon him by the section still continues notwithstanding the settlement.

I myself can see no sufficient reason to doubt what was said by Rosa J. in the case just-cited. My own impression of the section is that no matter what the purchasing co-sharer does by way of subletting the land to a third person vis-a-vis himself and his co-sharers his liability to pay the shares of the rent to his co-sharers remains unaffected. Having regard to the view which I hold, it is clear that Nathun Mahton was not a necessary party and his absence from the position of a party in the litigation does not go to the root o� the question.

As to the second point, it is clear that in the rent reduction proceedings, u/s 112-A, Bihar Tenancy Act, only defendant 1 was made a party and the other landlords pi the holding were not made parties; No notices were issued to them. The decision was given in their absence. It is quite clear that in these circumstances the order reducing the rent was without jurisdiction. Rule 84 framed under the Bihar Tenancy A6t states:

When a landlord or tenant applies for the settlement of a. lair rent, a notice in Form 18 in Schedule 1, shall be served on ever person interested to the application, together with a copy of the application or extract therefrom or summary thereof, so far as, the application concerns such person.

Rules 114 states:

Rules 82, 83, 84, 85, 87 and 88 A of these Rules shall apply as fat as may, be to applications u/s 112-A.

Rule 115 provides for a general notice when the Gevernor has issued a notification under Sub-section (1) of Section 112A, Rule 117 states.

if the landlord or a tenant of any occupancy holding referred to In the notice Served under Rule 115 does not attend after service of the said notice has been proves, the proceeding may be ex, parte.; Provided that when the Collector proposes to alter the existing, rent of any occupancy holding and the parties have not attend in compliance with the notice served under Rules 115; the Collector shall serve on such person interested a special notice, and the rent of such holding all not be altered, in the absence of such person until after the service of such special notice has been proved.

It is clear, therefore, that in the absence of other landlords on whom no special notice was served under Rule 117, the rent of holding ought not to have been altered. I am satisfied, therefore, that having regard to what has been proved in this case, the order reducing the rent was without jurisdiction and does not bind, the plaintiff.

As to the third point, whatever may have been the error id the statement made in the plaint regarding the annual rental for the holding in question, the plaintiff claimed, Rs. 7-9-3 as his annual quota of rent, Not only he gave evidence to that effect, but his evidence found support from the deposition of defendants'' witness D.w. 1 who is the karinda. This witness stated specifically that the plaintiff and Babu Surajnath Singh are the maliks who receive half and half out of Rs. 16''2-6. Both the Courts below acted on this evidence and found that the rent claimed was correct. This point, in my opinion, has got no substance.

In the result, I would dismiss this appeal with costs.

Das J.

I agree, and should like to add a few observations with regard to the point which arises out of Section 22(2), Bihar Tenancy Act. The question raised before us is if. Nathun Mahton was a necessary party. The two judgments of the Courts below do not show in what circumstances the appellant, who was, the purchasing co-sharer, had settled the land with Nathun Mahton and. on what rent. There is nothing in the record to show that Nathun Mahton was ''accepted'' as a rayat by the entire, body of landlords oh the contrary the judgment of the Court of appeal below ''Shows that Nathun when he applied for reduction of rent u/s 112A, Bihar Tenancy Act, described the appellant alone as his sold landlord. It has not been proved oil behalf of the appellant that the settlement with Nathun Mahto wag a bona fide settlement by a co-sharer landlord. It has, however, been contended on behalf of the appellant that Nathun Mahto became a raiyat in respect of the land settled with him by the purchasing co-sharer, by virtue of the provisions of Section 22(2), Bihar Tenancy Act. The appellant relies on that portion of Sub-section (2) of Section 22 which says that.

If such transferee sub-lets the land to a third person, such third person shall be deemed to be a tenure holder or a raiyat as the case may be in respect of the land.

It is contended that the Illustration appended to the Sub-section shows that the person who takes the land for the purpose of cultivating it himself from the transferee co-sharer becomes a raiyat in respect of the land. The point is not free from difficulty, but having heard learned Counsel I have come to the conclusion that Nathun Mahto was not a necessary party in this case, and the plaintiffs-respondents could still sue the transferee co-sharer for their share of the rent which was payable to them from time to time. I have already pointed out that their is nothing in the record which would go to prove that Nathun Mahto was accepted as a raiyat by all the landlords or that the settlement made with him by the transferee co-sharer was a bona fide settlement. The question posed before us is if the peculiar status which the transferee co-sharer gets u/s 22(2), Bihar Tenancy Act, ceases-after the transferee co-sharer settles the land with a third party. No case has been cited before us which is directly in point. The Court of appeal below relied on 6 Pat. 13d1 where the question arose in a somewhat different way. In that case, there wore two bodies of, landlords, one the Banaili Raj and the other Shrinagar Raj. The Banaili Raj acquired the status u/s 22(2), Bihar Tenancy Act, in respect of about 156 bighas of land. The Banaili Raj settled the lands with certain other parties. Thereafter, there was a partition between the Banaili Baj and the Srinagar Raj, and a part of 155 bighas was allotted to the Banaili Raj and a part to the Srinagar Raj. The Srinagar Raj sued one of the original tenants and obtained a decree and took proceedings for sale of the holding. Then, the Banaili Raj brought a suit for a declaration that the party whom the Srinagar Raj had sued had no connection with the land and that the Srinagar Raj was entitled only to the proportionate rent of the SI bighas of land. One of the points which was taken against the claim of the Banaili Raj was that after the settlement made by the Banaili Raj, the latter had no further interest in the land and the peculiar status which it had got u/s 22(2), Bihar Tenancy Act, had ceased after the settlement of the lands with third parties. This plea was not accepted, and it was observed that by making such a settlement, the transferee does not become a landlord, and the peculiar status conferred upon the transferee by Section 22(2) still continues notwithstanding the settlement. This observation is against the contention raised on behalf of the appellant in the present appeal. The decision in Kirtya Nanda v. Ram Lal AIR 1926 Pat. 580 so far as it related to the position of a transferee cosharer on partition (at least after the amendments made in Section 22 in 1907), must be considered to have been imphedly overruled by the Fall Bench decision in Sunder Mall v. Lachhmi Tewari AIR 1940 Pat. 467. The decision in Kirtya Nanda v. Ram Lal AIR 1926 Pat. 580 was based on Jhapsi Sao v. Bibi Aliman AIR 1926 Pat. 580 263, Nand Kishore Singh v. Mathura Sahu AIR 1922 Pat. 193 and Basudeo Narain v. Radha Kishun AIR 1922 Pat. 62. The Full Bench referred to those earlier decisions and did not follow Jhapsi Sao v. Bibi Aliman AIR 1926 Pat. 263. The observation made in Kirtya Nanda v. Ram Lal AIR 1926 Pat. 580 regarding the position of a transferee cosharer after settlement with a third party was not, however, questioned. The matter can also be looked at from another point of view. A single co-sharer is not the landlord of the entire land and cannot create a valid tenancy in respect of it; see the observations made in Bibi Kaniz Fatima v. Hassainuddin Ahmad AIR 1943 Pat. 194 . There are many decisions of this Court where it has been held that where a co-sharer landlord after purchasing an occupancy holding inducts a tenant on the land and realizes a higher rent than that which used to be paid by the occupancy tenant from whom the purchase was made, the other co-sharer landlords are not entitled to a share of the higher rent. It was observed that on a proper construction of Section 22(2) of the Act, the rent referred to is the rent of the original occupancy holding, and not the rent payable in respect of the, tenancy that may have been created afterwards by the purchasing co-sharer: Miss G.B. Solano and Others Vs. Maharaja Kumari Umeshwari Koer, . Similarly, if the purchasing co-sharer settles the land with third party on a nominal rent, the other co-sharers cannot be affected thereby and cannot be asked to forego their share of the original rent payable for the holding As has been pointed out in Sunder Mall v. Lachhmi Tewari AIR 1940 Pat. 467, the amount paid to1 the other co-sharers by the purchasing co-sharer is not "rent" in the strict sense of the word, but is compensation. If by operation of Section 22(2), Bihar Tenancy Act, the third party inducted on the land becomes a raiyat under the entire body of landlords, then a very anomalous result may follow. If the third party is inducted on higher rent, then he would be paying at different rates of rent to different landlords. I do not think such a result is contemplated by Section 22(2), Bihar Tenancy Act. There are certain observation''s in Sukhdeo Pandey v. Rameshwar Prasad AIR 1939 Pat. 522 which also show that the person inducted on the land by the purchasing co-sharer may became a raiyat under the person so inducting him, but the action of a single co-sharer cannot prejudicially affect the right of the other co-proprietors to realize their share of the original rent from the purchasing co-sharer. The position will be different if it can be proved that the other co-sharers have accepted as tenant the person inducted by the purchasing co-sharer. The position may even be different if the settlement is a bona fide settlement, though I express no final opinion in that matter. In the case before us we know nothing about the circumstances in which Nathun Mahto was inducted on the land nor the terms on which he was so inducted, I do not see how the purchasing co-sharer can say in this case that his co-proprietors must sue Nathun Mahto on a reduced rental and thereby force them to give up the right to realise their share of the original rent from the purchasing co. sharer. In my opinion, the co-proprietors in this case are still entitled to get their share of the, original rent from the purchasing co-sharer, notwithstanding the settlement, if any, with Nathun Mahto, and in this view of the matter, Nathun Mahto was not a necessary party, and the plaintiff-respondents could not be non-suited on that ground.