Ram Dhyan Singh and Others vs Pardip Singh and Others

Manuk, J.—This appeal comes before us, against a judgment and decree of the District Judge of Gaya, reversing the decree passed by the Subordinate Judge of the, First Court of Gaya whereby the latter dismissed the plaintiffs respondents'' suit for arrears of rent against the contesting defendant, now represented by the appellants before us, and against the respondents second party as pro forma defendants.

The facts of the case, so far as we are concerned with them, are that at the time of the suit the superior interest qua mukarrari or sub mokarrari grants in the property was held as to ten annas by the plaintiffs, as to four annas by the contesting defendants Nos. 1 to 16, and as to two annas by the pro forma defendants Nos. 17 to 20. Apart from their mokarrari interest the contesting defendants Nos. 1 to 16 held the whole of this property on a think acquired from the original proprietors. In the year 1917 the plaintiffs, as ten-anna mokararidars, instituted a suit for recovery of arrears of thika rent due to them for the years 1324 and 1325 Fasli. The plaint on the record is silent as to whether the plaintiffs collected their rent separately from or jointly with the other co-sharers. They framed their suit as one u/s 148A of the Bengal Tenancy Act. In paragraph 7 of their plaint they allege that the contesting defendants Nos. 1 to 16 were in collusion with the pro forma defendants; that the latter had refused to join in the institution of the suit; that, though enquiry was made, both sets of defendants had refused to let the plaintiffs know whether the thikadar defendants bad paid all or any portion of the proportionate share of the rent due to the pro forma defendants. The plaintiffs were, therefore, driven to declare in their plaint that their proportionate share alone, as in arrears on the date of suit, was the entire amount of rent due, and that they, therefore, instituted the suit u/s 148A of the Bengal Tenancy Act. They prayed for a decree for the amount due them together with Cost and interest, and If the alternative they prayed that

"If the pro forma defendants also state that any rent is due to them and wish to join in the suit as plaintiffs, then they may be ordered to join in this suit on payment of Court-fees."

The thikadars, defendants Nos. 1 to 16, alone appeared in the first Court, and in their written statement they ignored the allegations contained in paragraph 7 of the plaint, whereby the plaintiff had sought to bring his suit under the provisions of Section 148A of the Bengal Tenancy Act. They were silent as to whether they had paid any rent for the years in suit to the pro forma defendants, nor did they take any objection that the suit, as framed, did not fall u/s 148A of the Bengal Tenancy Act.

The learned Subordinate Judge, in a very short judgment, held that Baikantha Nath Sen v. Ramapati chatterjee 45 IndCas 767: 27 CLJ 101 applied to the facts of the case and that, therefore, the suit was not maintainable u/s 148A of the Bengal Tenancy Act. He accordingly dismissed the suit with costs.

On appeal the learned District Judge distinguished Baikantha Nath Sen v. Ramapati chateerjee 45 Ind. cas. 767; 27 C. L. J. 101 and holding that Nunda Lal v. Kala Chand 8 Ind. Cas. 50: 15 C. W. N. 820 was more appropriate in its application to the facts of the present case, decreed the plaintiffs'' suit with costs. It is, as I have said, against this order, that this appeal has been made to us.

Now Sections 148A and 158B of the Bengal Tenancy Act were added to that Act in 1907 in order to set at rest the vexed questions arising out of suits brought by a co-sharer landlord suing alone for his share of the rent if there was no arrangement to collect separately, or for the entire rent if the collections had been joint. The Calcutta High Court had held that the Bengal Tenancy Act did not apply to a suit for recovery of rent by one or more co-sharer landlords as distinguished from the whole body of them [see Jogendra Nath Ghosh v. Paban Chandra Ghosh 8 CWN 472 decided in 1904, and the cases cited therein]. That Court had also held that the tenure or holding does not pass to the purchaser at a sale in execution of such a decree [Narain Uddin v. Srimanta Ghose 29 C. 219 Those decisions were mainly arrived at by interpreting the words "anything which the landlord under this Act is required or authorized to do" in Section 188, Bengal Tenancy Act, as including the bringing of a suit for arrears of rent. A perusal of the judgments of Goose, J., and Geidt, J., in dissension as set out in the report of the Privy Council decision in Parade Nath Roy v. Ramani Kanta Roy 35 C. 33: 12 CWN 219: 10 BomLR 65: 35 I. A. 73: 7 C. L. J. 139: 18 M. L. J. 43: 3 M. L. T. 151 will suffice to show the views then prevalent. It is interesting to observe that shortly before that decision by their Lordships of the Privy Council, which was based on the Bengal Tenancy Act as it stood before its amendment in 1907, the Indian Legislature had intervened to set the questions at rest. The suit in the last mentioned case before the Privy Council was instituted by co-sharer landlord for the entire rent against the tenant and the other co-sharer landlords, the latter having refused to join him in that suit. The Judicial Committee held that Section 188 of the Bengal Tenancy Act was not a bar to such a suit, as the filing of a suit is not a thing which the landlord is under the Act required or authorized to do. Their Lordships further hell that under the general principles of legal procedure, quite apart from the Bengal Tenancy Act a sharer whose co sharers refuse to join as plaintiffs, can bring them into the suit as defendants and sue for the whole rent due, and could do so in spite of an arrangement previously prevailing whereby the co-sharers collected their rent separately. Such an arrangement, their Lordships say, merely affected the right to sue separately, this is without joining the other co-sharers, but in no other respect modified the terms of the holding. It followed, therefore, that the right to bring the tenure to sale remained intact.

In my opinion it follows a fortiori from that decision that under the law, as it then stood, a co-sharer could bring a similar suit even though the collection had been joint.

Meanwhile, as I have said, the Indian Legislature had place Section 148A and Section 158B on the Statute Book; Section 158B, in order to benefit co-sharer landlords who collected their rents jointly, and Section 148A to include those who collected separately and were, therefore, not in a position to know whether the rents payable by the tenants to other Co sharers had been in fact paid or not

It is unnecessary for as to consider whether these Section have any way affected the general principles of legal procedure laid down by the Privy Council as applying to such suits, for we can decide the appeal, before us on Section 148A itself.

I am of opinion that the essential principles underlying that Section are 45 Ind. Cas. 767; 27 C. L. J. 101 that Section suit should in form, be for the whole and in substance for the separate share of rent, in arrears; 8 Ind. Cas. 50; 15 CWN 820 that the whole body of landlords are imp leaded, with the allegation that the plaintiff has not been able to ascertain what, if any, rents are due to the former. In such cases the whole rent due must, in the nature of things, be always matter of speculation for the Plaintiff and he is entitled to assert that he believes that his share of the rent due is the entrie rent due and ask the Court to decide on the accuracy of that belief, if and when the impleaded co-sharers appear and arrears as due to themselves. If his belief is accurate the Court will give him a decree for his share of the rent only as being the court will investigate and decree the arrears due to the impleaded co-sharers as well.

These are obviously the principles under lying the decision in Nunda Lal v. Kala Chand 8 Ind. Cas. 50; 15 CWN 820 in which it was held that plaint must be examined to find its intention, and the decision in Brohmanand Nath Deb Sircar v. Hem. Chandra Mitra 23 Ind. Cas. 981, 18 CWN 1016. in which it was held that a very similar plaint to the one before us substantially plied with the requirements of Section 148A inasmuch as the rent due under that Section does not mean the entire rent payable on the original contract or lease. It may be the whole of the rent payable happens to be in arrears, it may include the arrears of the plaintiff and the known arrears of his co-sharers, it may, on the other hand, turn out to be only the arrears due to the plaintiff himself. If the plain in spirit and intention complies with the essential requirements which I have laid down above, I hold it would be unfair to defeat the plaintiff because of its inartistic draftsmanship, for the Section itself is not too artistic in its draftsmanship.

Now in this case the plaint in paragraph 7 as set out above and in its two prayers has in my view clearly satisfied the essential requirements of Section 148A.

With regard to the decision in Bai kantha Nath Sen v. Ramapati Chatterjee 45 Ind. Cas. 767: 27 C. L. J. 101 we are of opinion that it is distinguishable. Mr. Justice Mukerjee, at page 103 say, "But it is plain that if a plaintiff seeks to avail himself of the special provisions of Section 148A, he must in his plaint seek to recover the entire amount due to himself. This the present plaintiff has failed to do."

It was obviously a decision on its own facts, and in no way touches the principles on which the earlier cases in Calcutta were decided and the principles on which the decision in this case also will rest.

For these reasons I am of opinion that the order of the learned District Judge decreeing the suit was right, and that the appeal fails and should be dismissed with costs.

Atkinson, J.

I entirely agree with the judgment of my learned brother.