Sinha Gope and Others vs Jageshwar Prasad and Others

Sinha, J.—This is a defendants'' second appeal from the decision of the learned Subordinate Judge of Begusarai reversing that of the Munsif of the same place in a suit for a declaration that the orders of the revenue Courts'' reducing the rent of the holding u/s 112A, Bihar Tenancy Act, are a nullity, being ultra vires.

The material facts leading up to this appeal are as follows: The plaintiffs are the proprietors of the holding in question which was, on the findings, constituted for the first time in 1919 at an annual rent of Rs. 84 after consolidating two holdings, one bearing an annual rent of Rs. 72 and another bearing an annual rent of Rs. 12. Harbhajan, who was the tenant of this reconstituted holding, died in 1985, leaving him surviving his two sons, defendants 1 and 2, and his grandson, defendant 3, son of defendant 1. Of the two plaintiff a, the second plaintiff has executed a usufructuary mortgage bond in favour of the defendant-second party for a term of years, ending with the close of the Fasli year 1349. Defendant 1 made an application for reduction of rent in 1939 on the ground that the holding had deteriorated in productive capacity. This application was made in the name of Harbhajan deceased, though, in fact, by defendant 1 himself. This was numbered as Case No. 756 of 1989. A subsequent application was filed by defendant 1, saying that Harbhajan was dead, and the applicant, defendant 1, had succeeded to the holding. It should be noted that the application had been made in Form No. 33, meant for an application u/s 112A(1)(c), Bihar Tenancy Act. No application for reduction u/s 112A(l)(d) in Form No. 34 was made. But the Bent Reduction Officer granted relief to the applicant under clause (d) of the section by reducing the rent to Rs. 46-8-0. It should also be noted that the plaintiffs, that is to say, the proprietors, were impleaded in the rent reduction proceeding but Hot the sudhbharnadar, the defendant-second party. On appeal by the proprietors, the case was remanded for a fresh decision. After remand, a petition for amendment was made to the effect that the application should be deemed to have been made under Clause (d) of Section 112A(1), Bihar Tenancy. Act. Even after remand, Form No. 34, meant for an application under Clause (d) of the section, was not used; but, ultimately, the orders of the Rent Reduction Officer reducing the rent to RS. 46-8-0 were maintained by the appellate and the revisional Courts. It was in the revisionel Court, before the learned Commissioner, that the plea of defect of parties on the ground that the sudhbharnadar had not been impleaded was raised for the first time. This plea was negatived on the ground that it had been raised too late.

Two suits were filed, one being Title Suit No. 157 of 1943 against the tenant-defendants as first party and the sudhbharnadar as the defendant-second party, and another being Bent Suit No. 299 of 1933 for recovery of arrears of rent, for the years 1346 to eight annas kist of 1350 Fasli. The rent suit was filed by the first plaintiff only; but, subsequently, defendant 7 in the suit, the sudhbharnadar, was transposed as a co-plaintiff. In the title suit, the plaintiffs claimed the declaration that the orders of the revenue Courts reducing the rent from Rs. 84 to rupees 46-8-0 were ullra vires for the reasons (1) that all the landlords had not been impleaded, inasmuch as the sudhbharnadar, the defendant-second party, had not been named as the landlord in the column meant for showing the names of the landlords of the holding; (2) that all the tenants had not been impleaded, inasmuch as the application had been made originally in the. name of the deceased Harbhajan which was subsequently amended in the name of defendant 1 only; and (3) that the application as made by defendant 1 was in Form No. 83, meant for a case coming within the purview of Clause (c) of Section 112A(1), Bihar Tenancy Act, and that, therefore, the orders of the revenue Courts, purporting to have been made under the provisions of Clause (d) of that section, were a nullity.

Both the suits were contested by the defendants, and they were heard together, as they related to the same holding. The tenant-defendants contended that the title suit for the declaration aforesaid was not maintainable for the reasons that the revenue Courts had exercised their final jurisdiction, and, as there was no want of jurisdiction in those Courts, the civil Court could not interfere with their orders. In the rent suit, it was pleaded by the defendants that they were liable only for the reduced rent.

The trial Court dismissed the title suit, holding that the orders of the revenue Courts, reducing the rent of the holding, were not ultra vires, and decreed the suit for rent at the reduced rate in accordance with the orders of the revenue Courts.

It should be noted that no appeal was filed from the decision of the trial Court in the rent suit; but an appeal was filed only in the title suit. On appeal, the learned Subordinate Judge came to the conclusion that the sudhbhanardar, the defendant-second party, respondent before him, was a necessary party to the rent reduction proceedings, and that, in his absence, the revenue Courts had no jurisdiction to entertain the application for reduction of rent. He also held that all the three tenants, namely, defendant 1, his brother defendant 2, and his son, defendant 3, were also necessary, parties, and the absence of the two defendants from the proceedings rendered them null and void. Lastly, he held that the application before the revenue Courts, even after the amendment after remand as aforesaid, remained an application under Clause (c) of Section 112A(1), Bihar Tenancy Act, and, therefore, the revenue Courts had no jurisdiction to grant relief to the applicant under Clause (d) of that section. In the result, he decreed the 8uit, and reversed the decision of the trial Court, and gave a declaration that the orders of the Rent Reduction Officer reducing the rent of the holding were ultra vires and not binding on the appellants. Hence this second appeal by the defendants-first party.

It should be noted at the outset that this case was first placed for hearing before a single Judge of this Court who referred it for hearing by a Division Bench. Before us, learned Counsel for the appellants has contended that the lower appellate Court has misdirected itself in so far as it has held that, for the reasons given by it, the orders of the Rent Reduction Officer were ultra vires. The only question for determination in this appeal is whether the orders of the Rent Reduction Officer are ultra vires. It will be convenient to deal with the grounds of decision of the lower appellate Court separately.

The lower appellate Court has held that the absence of the sudhbharnadar, who is the defendant-second party in this suit, vitiated the entire proceedings in the revenue Courts. It should be noted that this is not a suit by the sudhbharnadar for a declaration that the rent reduction proceedings and the orders made therein were not binding upon him. Though he was impleaded as a defendant in the suit, he did not ask for being transposed to the category of a plaintiff. If he had instituted a suit for a declaration that the orders of the Rent Reduction Officer were not binding upon him, the position may have been different. But the plaintiffs were certainly parties to the rent reduction proceedings. They did not challenge the authority of the revenue Courts to pass the orders which they did in the absence of the sudhbhanadar. It cannot, be gainsaid that the orders of the revenue Courts reducing the rent of the holding are not binding on the sudhbharnadar. Even after the dismissal of his suit for arrears of rent at the original rate of rent, he did not choose to challenge that decision by filing an appeal. Hence, so far as he is concerned, the decision in the rent suit is final, at least for the period for which the rent suit had been instituted. For aught we know, his sudhbharna interest has ceased, as the period of the mortgage, according to the stipulation in the deed, was to expire in 1349 Fasli, and that may have been the reason why he did not choose to appeal from the adverse decision in the rent suit. So far as the plaintiffs are concerned, they were parties to the rent reduction proceedings, and, in my opinion, they are bound by the result of those proceedings. It has been rightly argued on behalf of the plaintiff-respondents that the rent of a holding is one, and, if it is the original rate of rent so far as the sudhbharnadar is concerned, it cannot be the reduced rate of rent as against the plaintiffs. In this connexion, the remarks of Manohar Lall J. in Arbinada Bandhu v. Hargauri Tewari S.A. Nos. 57 and 84 of 1943, to the following effect are relevant:

It remains to consider the argument that the 4 annas cosharer landlords were not impleaded at all and, therefore, the order reducing the rent of the entire holding was not binding upon the cosharer-landlords who have appeared. Apart from the remarks which I have already made, it is enough to state that the learned Munsif has pointed out that the 12 annas cosharer-landlords could easily have taken the plea that the four annas cogharers had not been impleaded, and secondly he asked the question what is there to show that the agent of the four annas cosharer-landlords was not present watching those proceedings, and then he answers the question by saying that he must have been doing so, and, therefore, Ex. C was issued. I am further of opinion that the absence of the four annas cosharer-landlords would amount at the utmost to a defect of parties. The older may or may not be binding on these four annas cosharer landlords, but it is certainly, binding on the12 annas cosharer landlords, who are appellants before me.

It appears that there were Letters Patent appeals from the decision of Manohar Lall J., being Arabinda Bandhu Vs. Hargauri Tewari and Others, From the judgment of the Court in the. Letters Patent appeals, it would appear that this part of the judgment of Manohar Lall J., was not assailed. It cannot be said that the Revenue Courts had no initial jurisdiction to hear the matter. Defect of parties is not such an irregularity as to affect the jurisdiction of the Court seized with initial jurisdiction to render the judgment which can be assailed collaterally., The entire proprietary interest in the holding in question was represented before the revenue Courts, though a temporary landlord, namely, the sudhbharnadar of the second plaintiff owning a moiety share in the proprietary interest, was not impleaded. That defect, in my opinion, should not be allowed to render the entire proceedings nugatory, especially when the person adversely affected by that order, who could challenge it on the ground that he was not a party to it, has not chosen to do so. As already stated, this is not a suit by the sudhbharnadar. It is not one of those cases where it could have been said that the entire proprietary interest in the holding bad not been represented before the revenue Courts. Whether the tenant-defendants were or were not aware of the existence of the sudhbharna is a matter which should not detain us, though the lower Courts appear to have devoted some space to this controversy. In my opinion, the landlords'' interest was sufficiently represented before revenue Courts to give them jurisdiction to entertain the application for reduction of rent, and the absence of the sudhbharnadar from those proceedings does not render the order passed in those proceedings null and void. As already indicated, this defect of parties was not canvassed in the revenue Courts, except before the Commissioner who had no jurisdiction in the matter. The Courts, namely, the original and the appellate Courts, which dealt, with the rent reduction proceedings were not invited to adjudicate upon the alleged irregularity in so far as the sudhbharnadar was not a party to the proceedings. The plaintiffs, who were parties to those proceedings, are not entitled to raise that question, having failed to raise it before the competent Courts in those proceedings.

The second ground on which the learned Subordinate Judge has held against the appellants is that defendants 2 and 3 were not applicants before the revenue Courts. It is apparent, on the findings, that all the defendants-first-party are members of a joint Hindu Mitakshara family, and that defendant 1, who figured as the applicant in the revenue Courts, is the karta of the family. There cannot be the least doubt that the application made by defendant 1 in the revenue Courts was made in the interest of the family as a whole, which he could in fact and in law represent, and the ultimate result of those proceedings has certainly been for the benefit of all of them. If defendant I was the karta of the family, he could, in law, present the application to the revenue Courts on behalf of all the defendants, and, in my opinion, the lower appellate Court has erred in holding that the application was defective on the ground that defendants 2 and 3 were not the applicants in the revenue. Courts. The lower appellate Court has pointed out that, in the written statement filed in the suit, it was not alleged by the defendants that defendant 1 had filed the application in a representative capacity on behalf of the entire family. But it was not absolutely essential that it should have been so pleaded. The fact that defendant 1 is the karta of the family rendered the proceedings entirely regular. Defendants 2 and 3 have not challenged, and cannot challenge, the legality of those proceedings.

Lastly, the lower appellate Court has observed that the revenue Courts had no jurisdiction to grant relief to the applicant under Clause (d) of Section 11A(1), Bihar Tenancy Act, when the application had been made under Clause (c) of that section. This ground of decision'' has not been sought to La supported by learned Counsel for the respondents. It is manifest that such a ground is wholly ineffective on the question of jurisdiction of the revenue Courts. In this connexion it may be stated that this very ground had been successfully urged by the proprietors in the appellate Court which remanded the case for a fresh decision in accordance with law. After remand, the Kent Reduction Officer allowed the proceedings to be amended, and the applicant prayed that his application might be dealt as having been made under Clause (d) of that section. The revenue Courts had jurisdiction to allow the amendment of the proceedings, and, that jurisdiction having been exercised, it is not open to be challenged in a collateral proceeding. The revenue Courts may have acted wrongly, though that is by no means clear, in allowing the amendment; but that is not a question which is open to the plaintiffs in this suit.

As all the grounds upon which the lower appellate Court has decreed the suit are, in my opinion, wholly inadequate to affect the jurisdiction of the revenue Courts, the decision of the lower appellate Court must be set aside, and that of the trial Court restored with costs throughout.

Mahabir Prasad J.

I agree.