Rajgiri Singh and others vs Jadunath Ray and another

Mullick, J.—These two second appeals arise out of two suits Nos. 608 and 611 of 1918 in each of which the plaintiff a co-sharer landlord sued the tenants defendants Nos. 1 and 2 for his share of the arrears of rent for the years 1322 to 1325. Defendants 3 to 37 were the remaining co-sharer landlords and were impleaded because they were not willing to join as plaintiffs.

There was a third suit No. 590 of 1918 which was instituted by another co-sharer named Kunj Behari against the same tenants but which after being remanded on appeal was compromised. In suits Nos. 608 and 611 the plaintiffs Rajballam Singh and Rajgiri Singh got a decree for the full amount of their claim in the Court of the Munsiff but for some reason unexplained, the Munsiff directed that these decrees should be executed as money decrees, while in suit No. 590 the direction was that the decree should be executed as a decree in a rent suit framed u/s 148-A of the Bengal Tenancy Act.

The tenants appealed in each case and the Subordinate Judge arrived at the following findings:-

(1) that the rent of the holding was Rs. 150-11-6 as stated by the plaintiff;

(2) that it was not necessary to determine the area;

(3) that the defendants had failed to prove any diluvion during the years in suit;

(4) that the plea of payment could not be accepted; and

(5) that the respective plaintiffs were not entitled to sue for their shares of the rent separately.

The Subordinate Judge accordingly by his decree in appeals Nos. 212 and 213 dismissed the suits to which they related, namely Nos. 608 and 611, but he remanded Appeal No. 214 which arose out of Suit No. 590 with a direction that the Munsiff should pass a decree for the entire rent in favour of the proforma defendants on receiving the necessary court fees from the plaintiff. Evidently the learned Subordinate Judge meant that the decree should be made in favour of the plaintiff and the pro-forma defendants jointly for such amount of the arrears as was due. When the case went back to the trial Court on remand, the tenants compromised with Kunj Behari Singh with the result that the suit was decreed in terms of the compromise and the plaintiffs in Suits Nos. 608 and 611 were left without any relief.

They accordingly prefer the present second appeals Nos. 1078 and 1079.

Now, where a tenant makes a contract by which he is liable to pay rent to several co-sharers jointly, it is obvious that one co-sharer cannot maintain a suit for the whole rent. It is also true that section 188 of the Bengal Tenancy Act demands that landlords shall do jointly anything which they are under the Act required or authorised to do, but there is nothing to prevent one co-sharer from bringing a suit for the whole rent after making the co-sharers, who refuse to join as plaintiffs, defendants in the suit. See Pramada Nath Roy v. Ramini Kanta Roy (1908) 35 Cal. 331 : 35 I.A. 71 (P.C.) Again if a co-sharer can prove that there is a contract express or implied by which a tenant is liable to pay him his share of the rent separately, then he may bring a suit for that part of the rent without joining his co-sharers as defendants, but the decree obtained by him is to be executed as money and not a rent decree. On the other hand, notwithstanding such arrangement for separate collection, all the co-sharers may sue jointly for the whole rent.

In order to further facilitate the recovery of the arrears of rent due to a co-sharer who is in dispute with his tenants or with his fellow landlords, the Legislature enacted section 148A of the Bengal Tenancy Act in 1907. This section requires, firstly that the co-sharer shall sue to recover the rent due to all the co-sharer landlords in respect of the entire tenure or holding, secondly that he must make all the remaining co-sharers parties to the suit, and thirdly that he must state that he is unable to ascertain what rent is due for the whole tenure or holding or whether the rent due to other co-sharer landlords has been paid owing to the refusal or neglect of the tenant or of the co-sharer landlords defendants in the suit to furnish him with direct information on these points or on either of them. In such a case the plaintiff co-sharer will be entitled to proceed with the suit for his share only of the rent and a decree obtained in a suit so framed shall be as effectual as a decree obtained by the sole landlord in a suit brought for the rent due to all the landlords. If in the suit it is found that the co-sharer defendants, have realised rent in excess of their shares, then they will be liable to reimburse the plaintiff to the extent of the excess realised by them. In this Court the case of Ram Dhyan Singh v. Pardip Singh (1919) 4 P.L.J. 500 contains a clear and instructive exposition of these propositions.

The learned Vakil for the respondents relies upon Rai Baikuntha Nath Sen Bahadur v. Ramapati Chatterjee (1918) 27 C.L.J. 101 but in that case the frame of the plaint was different and the case has been distinguished on that ground in Ram Dhyan''s case mentioned above and also in the Calcutta High Court in Profulla Chandra Ghosh v. Baburam Mandal (1921) 34 C.L.J. 462. In the plaints now before us the material relief clauses run thus:-

(1) A decree may be passed in the plaintiff''s favour against the defendants awarding Rs. 74-9-9, arrears with damages.

(2) If the defendants raise an objection as to the payment of rent separately to the plaintiff as alleged by him (the plaintiff) and the plaintiff be not deemed entitled by the Court to receive separately the amount of rent which has been claimed according to the aforesaid partition, in that case a joint decree may be passed in favour of the plaintiff and of the remaining Maliks on taking the deficit court fees.

The learned Subordinate Judge having found as a fact that there is no contract for the separate collection of rent, the only question which we have to decide is whether the plaints conform to the provisions of Section 148A B.T. Act. My answer to the question is in the affirmative inasmuch as the plaintiffs are claiming in the alternative the whole rent of Rs. 150-11-6 per year for the years in suit on behalf of themselves and their co-sharers. This too was the view of the learned Subordinate Judge when he remanded Suit No. 590 for trial upon payment of the necessary court fees by the plaintiff. The learned Subordinate Judge, however, should also have remanded Suits Nos. 608 and 611 with a direction that these suits should remain pending till the disposal of Suit No. 590 and that if the claim for the whole rent was satisfied in any of the three suits, the other two should be dismissed. Such a procedure would have avoided the result which has followed the compromise of Suit No. 590.

The learned Vakil for the appellant has furnished an account before us showing that the precise sum claimed by him in each suit is Rs. 618-2-0 and we order that the second relief clause in the plaints be amplified and amended as follows:-

If the defendants raise an objection to the payment of rent separately to the plaintiff and the plaintiff be not deemed entitled by the Court to receive separately the amount of rent which has been claimed according to the aforesaid partition, in that case a joint decree may be passed in favour of the plaintiff and of the remaining co-sharer landlords who have all been made parties to the suit for a sum of Rs. 618-2-0 which the plaintiff believes to be the entire amount of arrears of rent due as shown in the schedule attached hereto on taking the deficit court fee from the plaintiff.

Schedule.

Rs.

A.

P.

Rent for 1322, 1323, 1324 and 1325 F.S. ... ...

602

14

0

Damages at the rate of 25% ...

150

11

6

Total ...

753

9

6

Deduct the amount realised by BabuKunjBehari Singh, Plaintiff in Suit No. 590 of 1918 ... ...

135

7

6

Balance

618

2

0

A point was taken by the learned Vakil for the respondents that by reason of the provisions of section 153 Bengal Tenancy Act no second appeal lies in these cases. It is contended that as the claim is for less than Rs. 100 in each case the judgment of the learned Subordinate Judge is final. In reply to this it is urged that the Subordinate Judge having decided the question of the amount of rent annually payable, a second appeal is competent. In this case the plaintiff claimed the whole rent to be Rs. 150-11-6 and the defendant admitted it and the Court on the admission of both parties decided that the rent was this sum. In my opinion it could not have been said that there had been a decision as to a question of the amount of rent if the defendant had not admitted the plaintiff''s claim but had alleged some other amount to be the rent annually payable, and the Court without deciding the point had upon the defendants'' admission given the plaintiff a decree for a lump sum of money. That was the basis of the decision in Neke Jaie v. Nanda Dulal Bamkeja (1897) 1 C.W.N. 711.

But in the present suits there was clearly a decision and it is at least open to argument whether section 153 contemplates that the party in whose favour a decree has been made on a question of the amount of rent annually payable can take advantage of that part of the decree so as to appeal against another part of it. If the matter had been res integra, I should have been inclined to hold that the section means that the subject matter of the appeal must be the decree or part of the decree which has decided a question as to the amount of rent annually payable. The authorities, however, so far seem to be unanimous in favour of the contrary view and it is unnecessary in these appeals to decide the point. See Rai Churn Ghosh v. Kumud Mohan Dutt (1896) 1 C.W.N. 687 and Sripati Bhattacharya v. Kala Chand Ghose 1 C.W.N. (N) Cl. 27.

I think, however, that the appellants may claim relief on a much surer ground. The learned Subordinate Judge refused to exercise jurisdiction in suits 608 and 611 by declining to consider in those suits whether the plaintiff was entitled to a decree for the whole rent due. The suits ought not to have been dismissed without any adjudication upon this point and if an appeal does not lie, I think the plaintiffs would be entitled to ask us to interfere in revision.

We also have to notice that the Subordinate Judge, although the parties were at issue as to the area of the holding, has without any reason whatsoever declined to come to a finding on that point. The plaintiffs set up a private partition which the defendants denied. They contended that the area of the holding was 42 bighas 7 kathas 11 dhurs and the Munsiff found that this was the correct area. I fail to understand why the Subordinate Judge declined to decide the point.

The order therefore that we shall pass is that the appeals be decreed and that the cases be remanded to the Subordinate Judge who will, in the first instance, come to a finding upon the area of the holding; he will then remand the cases to the Court of the Munsiff who will allow the plaints to be amended in the manner we have indicated and after taking the necessary court fees will decide how much of the rent claimed is due from the tenant defendants.

He will then give the plaintiff and his co-sharers a decree for their respective shares in the arrears found due.

Both parties will be entitled to adduce evidence to prove what is the amount of the arrears due to the landlords. No further evidence will be allowed upon any other matter in the suit.

The appellants are entitled to their costs in this Court and in the Court of the Subordinate Judge.

Dawson Miller, C.J.

I concur.