Ram Chandra Mahton and Another vs Ram Gulam Mahton and Others

Wort, J.—This appeal arises out of an action for rent. The Judge in the Court below has held that the action was not maintainable as it was with regard to a part of the holding only.

The short facts so far as this matter is concerned are these: that there were three branches of a family represented by Pariyag, Kameswar and Pargash. Pariyag separated from the others and the defendants in this case represent the two remaining branches of the family. The plaintiffs supported their action by contending that after the separation to which I have just referred, there was a splitting up of the holding. The Judge of the trial Court came to the conclusion, which he seemed to think was inevitable in the circumstances, that the holding had been split up. It would have been difficult to have resisted the conclusion of the trial Court had the case been somewhat different. But the position in this action was that the 15 annas proprietors were suing the branches of the family to which I have referred and the one anna proprietor was joined as a pro forma defendant. If the 16 annas proprietors had agreed that the holding had been split up and evidence existed, to which the Judge of the trial Court referred, of payments made and accepted as regards what appears to have '' been a part of the holding, I repeat myself, it would have been difficult to resist the conclusion that there had in fact been a splitting up.

Now, in my judgment the finding of the Judge in appeal is conclusive so far as I am concerned, because he was treating with evidence which certainly might have been evidence of splitting up of the holding which was not conclusive nor was it an inference of law to be drawn from the facts.

It was not one of those cases in which the origin of the tenancy was unknown and an inference was to be drawn from admitted facts. As regards the origin of the tenancy or the tenancy which the plaintiffs asserted, evidence was given by both sides, and the question was whether the case of the plaintiffs was supported by the facts which they proved or whether it was not so supported. The Judge in the Court below has come to a conclusion on this question against the plaintiffs. Now, treating the matter on the finding of the Judge in the Court below that the holding has riot been split up, the claim which the plaintiffs make is with regard to a part of the holding. It is contended in those circumstances that the plaintiffs are entitled at least to a money decree. It seems to me perfectly clear in law that they are entitled to no such decree. This is not a question of non-compliance with the provisions of the Bihar Tenancy Act for the purpose of obtaining a rent decree as such, that is to say a decree binding upon the holding; it is a case in which the plaintiffs are suing for a part of the rent or a part of the holding whichever way one may look at the matter. Once having held that the claim is for a part of the holding, it seems to me perfectly clear that the action does not lie. The defendants are liable, if at all, for the rent of the whole holding, or, if the landlord likes to remit a part of the rent, they are liable for the balance. This is not a case in which the landlord claims the whole rent and in his plaint remits a part of the claim in which event he would be entitled to a decree. About that there can be no dispute. But the cause of action pleaded is a cause of action which casts no obligation on the part of the defendants and in my view therefore the action, as the learned Judge in the Court below has held, does not lie.

Reference is made in the course of the argument to cases which are conflicting in this respect. The plaintiffs rely upon the decision in Rambeas Tewari and Others Vs. Akhauri Raj Mohan Sahay and Others, . Reference in that case was not made to the previous Divisional Bench decision of this Court in Keshava Prasad Singh v. Mathura Kuar AIR 1922 Pat. 608 where Coutts and Das JJ held that an action of this kind did not lie. Agarwala J., if I may be allowed to say so, has correctly pointed out in Dwarka Prasad Singh v. Babu Lal Singh A.I.R.1938 Pat. 124 that the decision in Ram Beas Tewari v. Akhauri Raj Mohan Sahay A.I.R.1932 Pat. 304 was unwarranted unless the previous decision had been overruled by a Bench having, power to overrule it; and I feel myself bound by the earlier decision as did Agarwala, J.

In those circumstances it seems to me that the decision of the Judge in the Court below is correct and the appeal fails and must be dismissed with costs. As. this matter appears to be before a Full Bench of this Court I give leave to appeal.