R.C. Deb vs Lachhmi Prosad Singh and Others

Mohammad Noor, J.—The appellant and the principal respondents are cosharers of village Kurdanrup in the District of Gaya. The share of the former is eight annas and that of the latter five annas five pies. The remaining share belongs to the third parties with which we are not concerned in the present case. The appellant instituted a rent suit framed u/s 148-A, Ben. Ten. Act, against the pro forma respondents making the principal respondents, their cosharers, defendants and obtained a rent decree. Two similar suits were later on instituted by the principal respondents in respect of their share of rent of the same holding and for the same year against the two pro forma respondents separately, the holding having been split up into two.

These two suits also purported to have been framed u/s 148-A, Ben. Ten. Act. The appellant was also made pro forma defendant in those two suits. These two suits were also decreed. The appellant executed his decree and brought the Holding to sale. The principal respondents claimed that the sale proceeds should be rateably distributed between them and the appellant in proportion to their respective decrees. This has been allowed by both the Courts below.

The learned Munsif held that though the decrees obtained by the principal respondents were not rent decrees. Section 169, Ben. Ten. Act, was wide enough to allow the rateable distribution. This order was upheld by the lower appellate-Court though on different ground. The learned Subordinate Judge held that the decrees obtained by the principal respondents were rent decrees. The appellant has preferred this second appeal.

It has been contended on behalf of the appellant that the learned Subordinate Judge was wrong in holding that the decrees of the principal respondents were rent decrees as there cannot be more than one rent decree for the same period in-respect of the same holding in favour of different sets of cosharer landlords.

The appellant having already obtained a rent decree for the period in question, the principal respondents could not get a second rent decree for the same period in respect of the same holding. It was also contended that the view taken by the learned Munsif having held the principal respondents'' decrees to be money decrees, was wrong in applying Section 169, Ben. Ten. Act. In my opinion though both the contentions of the appellant are well founded and the Courts below are in error, the order of rateable distribution is correct. Section 148-A contemplates one and only one rent suit in respect of a holding for a particular period.

The suit framed under that section must be for the entire rent, though in the absence of information whether or not rent is due to other cosharers and if so, how much, the plaintiff may proceed with the suit for his own share of rent only. It was held in Ram Dhyan Singh v. Pardip Singh AIR 1919 Pat 418, at p. 504 (of 4 P.L.J.):

that the essential principles underlying that section are: (1) that the suit should, in form, be for the whole rent and in substance for the separate share of rent in arrears; (2) that the whole body of landlords are impleaded, 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 a matter of speculation for the plaintiff and he is entitled to assert that he believes that his share of the rent due is the entire rent due and ask the Court to decide on the accuracy of that belief, if and when the impleaded cosharers appear and claim any 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 entire rent due); if inaccurate, the Court will investigate and decree the arrears due to the impleaded cosharers as well. The underlining [italicizing) is mine.

The appellant''s decree must therefore be taken to be a decree for the entire rent. If so, I cannot imagine how there can be another suit for rent for the same period and for the same holding framed u/s 148-A. It is obvious that there cannot be two suits for the entire rent of the same holding instituted by two different sets of cosharer landlords. In my opinion, when a suit u/s 148-A by a cosharer is decided, other cosharers who were impleaded in the suit as defendants are precluded from instituting another suit for their share of rent framed u/s 148-A. Such a suit will be barred by res judicata as the entire rent was in issue in the previous suit and the decree passed was in effect for the entire rent. No decree can be passed in the second suit, as the previous decree in the eye of the law is a decree for the entire rent of the holding.

The view of law taken by the learned Subordinate Judge is therefore not correct. Similarly, the view taken by the learned Munsif is equally wrong. Section 169, Ben. Ten. Act, only applies when the amount payable to the different cosharers is under the decree passed in the suit. The holder of a simple money decree cannot claim rateable distribution in the sale proceeds of a holding sold for arrears of rent. There is no difference in effect between a money decree obtained for rent and a money decree obtained for other dues. In this case however the position is different. The principal respondents did in fact institute suits purporting to be framed u/s 148-A impleading the appellants as defendants and did obtain decrees and those decrees in my opinion operate as res judicata between the principal respondents and the appellants.

It must be taken that the objection as to the maintainability of the suits was taken by the appellants and decided against them. The decrees are good decrees.

The effect is that in the presence of the appellant the Court adjudicated that the amounts mentioned in the decrees were actually due to the principal respondents as rent. This amount could have been determined in the appellant''s suit and it has now been done in separate suits and the decrees are binding upon the appellant. These decrees must be taken as supplementary to the decree obtained by him. This being the case I think the case comes within Section 169, Proviso (1).

A preliminary objection was taken as to the competency of this appeal on the ground that the order is not appealable. I think this objection has no force. The question of rateable distribution being between the parties to the suit comes within Section 47, Civil P.C. The respondents took no objection when the appellant preferred an appeal to the District Court. The result is that the appeal is dismissed with costs,