Srinandan Prasad Singh and others vs Mithan Mahton and others

Fazl Ali, J.—These appeals arise out of three suits which were instituted by the appellant to recover rent for the years 1334 and 1335 in respect of three holdings and for the enhancement of the existing rent of those holdings under S. 130-B, Ben. Ten. Act. The learned Munsif of Bhagalpur in whose Court the suits were instituted decreed them and allowed enhancement at the rate of 4 annas 6 pies in the rupee, but his decision has been reversed on appeal by the learned Additional District Judge who has dismissed all the suits with costs.

It appears that the holdings which are the subject-matter of the present suits originally belonged to two persons, namely, Ram Sahay and Kishun Mahto whose heirs and descendants are the defendants in these suits. One of the picas upon which the suits were contested by the defendants was that each of the three holdings in question had been partitioned sometime before the years 1325 into two equal halves between the descendants of Ram Sahay and Kishun Mahto and that the plaintiffs had agreed to the division of the holdings and accepted rents from the two sets of defendants separately. This plea was not accepted by the learned Munsif, but it was accepted by the learned Additional District Judge who held that two separate suits should have been instituted in respect of the two sub-divided portions of each holding. In arriving at the decision that the holding had been split up as contended by the defendants the learned Additional District Judge has relied upon a series of rent receipts (Exs. A to A-41), which are said to have been granted by the plaintiffs to the two sets of defendants between the years 1326 and 1333; certain summonses issued in 1919 in certain rent suits which were alleged to have been instituted by the plaintiffs against some of the defendants upon the basis that the holding had been sub-divided; a receipt (Ex. B) which purports to have been granted on behalf of the plaintiffs on the 1st Fagun 1334 and which contains a recital that the rent for which the suits had been brought had been paid by the defendants; the oral evidence adduced by the defendants and a recital said to be contained in some of the rent receipts which was to the effect that the holding had been split up. The learned Additional District Judge has also referred to certain so-called admissions made by some of the plaintiff''s witnesses, but as I shall presently show he has entirely misconstrued these statements.

Now, the material findings of the learned Additional District Judge are that the plaintiff had accepted rent from the two sets of defendants upon the basis that the holding had been split up and that the holdings in question had been in fact partitioned by the defendants. The learned Additional District Judge however overlooked certain important facts which had been duly emphasised by the learned Munsif, namely, that at the time when the receipts Exs. A to A-41 were granted, the plaintiffs were mere co-sharer landlords, that there was no proof on the record that the alleged sub-division of the holding had been assented to by the remaining co-sharer landlords and that there had been a partition since of the village under the Estates Partition Act, and in the partition records the sub-division of the holding was not recognized and the holdings in question were treated as entire holdings. S. 88, Ben. Ten. Act, clearly lays down that a division of a tenure or holding or distribution of the rent payable in respect thereof shall not be binding on the landlord, unless it is made with his express consent in writing or with that of his agent duly authorized in that behalf. A landlord in this section obviously means the entire body of landlords and as the learned Munsif has pointed out in his judgment there is nothing on the record to show that any of the landlords other than the plaintiff consented to a division of the holding or to the distribution of the rent in respect thereof. The true position thus was that the plaintiffs who were mere co-sharer landlords before the partition had done what they could to accommodate the defendants by receiving rent separately from the heirs of Ram Sahay and Kishun Mahto, but as the other landlords did not consent to the arrangement, there was no effective splitting up of the holding in the sence in which it would be binding upon the entire body of landlords under S. 88. Meanwhile the partition proceedings began and each of the holdings in question were allowed by the parties to be treated as one holding and allotted to the estate of which the plaintiffs became the sole landlords.

Now if there was no effective splitting up of the holding as required by S. 88, Ben. Ten. Act, before the partition so as to be binding upon the entire body of landlords, I do not think that the plaintiffs were bound to treat the holdings as sub-divided after the partition, merely because the plaintiffs became the sole landlords as a result of the partition. The matter may here be examined a little more closely. The first question is whether there was any actual division of the holding by metes and bonds. The learned Munsif has very pertinently referred to the fact that one of the defendants who gave evidence in the case stated in his evidence that he could not say which portion of each of the holdings in question and which plot had been allotted to each branch of the family. The learned District Judge has ignored this statement altogether and indeed he observes that in his opinion the question of actual division of the holding by metes and bounds between the co-sharer tenants is not of much importance for determining whether there was really a sub-division of the holding under S. 88, Ben. Ten. Act. In my opinion this view of the learned District Judge is erroneous in law. S. 88 speaks of a division of a tenure or holding and as has been pointed out in Indrasan Panda v. Kabutra Kuer, 1929 Pat 237 = 119 IC 556, a mere undivided parcel or parcels of land is not a holding within the meaning of the Bengal Tenancy Act. It is to be remembered that S. 88 deals with two classes of cases, viz.: (1) cases where rent is distributed and (2) those where the holding is divided. It appears to me that so far as the division of the holding is concerned what is contemplated by section 88 is the actual division of the holding into two or more definite units and not a mere notional division of the shares held by the tenants in the holding. If that were not so, the landlord would have considerable difficulty in giving particulars of the sub-divided holdings when he proceeds to bring separate suits for rent under S. 148-A, Ben. Ten. Act, in respect of the new holdings. It appears to me therefore that the first premise formulated by the learned District Judge was not correct.

The learned Judge has held in the alternative that even if it were assumed that the division of the holding by metes and bounds was a condition precedent to its sub-division under S. 88, there was satisfactory evidence on the record in the shape of admissions of the witnesses examined by the plaintiffs to prove that there was such a division of the holdings between the two branches. The admissions that he relied upon consisted of certain statements made by the plaintiffs'' witnesses Nos. 1 and 2. These statements however are merely to the effect that the rental of the defendants was split up upon their promising to execute an ekrarnama which was never executed. This statement did not amount to an admission that there was a final and unconditional splitting up of holdings so as to permanently bind the plaintiffs, but the learned Judge has treated these statements as amounting to some such admission. It appears to me that the mere fact that the plaintiffs tried to accommodate the defendants by accepting rent separately from the heirs of Ram Sahay and Kishun Mahto before the partition or even the fact that in the suits that they brought as co-sharers they sued these parties separately in consequence of some provisional arrangements arrived at by them, is not sufficient to compel them to treat the holdings as split up when in the partition to which the defendants as tenants were parties, they did not contend that the holding had been split up and allowed the holdings in question to be allotted to the plaintiffs'' estate as entire holdings. In one of the appeals (S. A. 429), the holding as it originally stood was 10 bighas odd bearing a rental of Rs. 25 odd, but by partition only 7 bighas odd have been allotted to the plaintiffs'' estate bearing a rental of Rs. 19. S. 81, Estates Partition Act, lays down that no holding shall be split up for the purpose of a partition unless it is reasonable to do so in order to effect an equitable partition and that when it is proposed to split up a tenure or holding and apportion the rent thereof as aforesaid, the Deputy Collector shall cause a notice to be served on the tenants concerned and after hearing the objections, if any, may order that the tenure or holding be split up and that the rent thereof be apportioned as aforesaid. I think that it may be assumed that before the splitting up of this holding notices must have been served upon the tenants by the partition Deputy Collector, but there is no proof that any objections were raised on behalf of the defendants to the effect that even the 7 bighas odd which were allotted to the plaintiffs'' estate by partition had been split up among the defendants into two parcels of land.

It appears to me therefore that the learned Judge was wrong in the circumstances of the case in holding that two separate suits were necessary to recover rent for the lands covered by each of the present suits and that the suits of the plaintiffs were liable to be dismissed on that ground. As I have shown, the findings on which the learned Judge has based this conclusion are vitiated by errors of law and as the present litigation has been going on for a long time and the issues which have not been legally determined by the learned Judge can be decided by us, we have considered it unnecessary to remand the case.

It may be stated that during the hearing of the appeal while the advocates for the parties were discussing certain terms of compromise the plaintiffs offered to treat the holding as already sub-divided, if the respondents supplied the particulars as to the lands in possession of the two sets of defendants. The defendants however failed to furnish such particulars though the case had to be postponed from time to time at the request of the learned advocate for the respondents to enable them to furnish such particulars.

The next question is whether the rent is liable to be enhanced. The learned Additional District Judge has dismissed the claim for enhancement on the ground that it is barred under S. 109, Ben. Ten. Act. It appears that in the year 1905 the plaintiffs applied in the settlement Court under S. 105, Ben. Ten. Act, for a settlement of rent of the three holdings which are the subject-matter of the present appeal. The applications however were subsequently withdrawn. The learned District Judge has relying upon the decision of the Judicial Committee of the Privy Council in Reshee Case Law v. Satis Chandra Pal, 1929 PC 134 = 116 IC 396 = 56 IA 179 = 57 Cal 118 (PC), and the decision of a Full Bench of the Calcutta High Court in Purna Chandra v. Narendra Nath, 1925 Cal 845 = 88 IC 637 = 52 Cal 894 (FB), held that the present suit is barred under S. 109, Ben. Ten. Act. In my opinion the learned Additional District judge has misunderstood the effect and scope of these decisions. S. 109, Ben. Ten. Act, provides that subject to the provisions of S. 109-A a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the the subject-matter of an application made, suit instituted or proceedings taken under Ss. 105 to 108. All that the Judicial Committee of the Privy Council decided in Reshee Case Law v. Satis Chandra Pal, 1929 PC 134 = 116 IC 396 = 56 IA 179 = 57 Cal 118 (PC), was that where an application was made under S. 105,. Ben. Ten. Act, and subsequently withdrawn whether with or without permission to bring a fresh suit, and even if the withdrawal was before the evidence had been, heard, the same subject was barred by the provisions of S. 109 of the Act. The question therefore is whether the subject-matters of the present suit and the application made in the year 1095 are the same.

A reference may be made here to S. 113, Ben. Ten. Act, which provides-that when the rent of a tenure or holding is settled under Chap. 10, it shall not except on the ground of a landlord''s improvement or of a subsequent alteration in the area of the tenure or holding be enhanced, in the case of a a tenure or an occupancy holding or the holding of an under-raiyat having occupancy rights for fifteen years, and, in the case of a non-occupancy holding or the holding of an under-raiyat not having occupancy rights, for five-years: and no such rent shall be reduced within the period aforesaid save on the ground of alteration in the area of the holding, or on the ground specified in S. 38, Cl. (a). It is clear that under this section the rent of an occupancy holding may be enhanced after a period of 15 years from the date on which its rent is settled under Chapter 10. It is conceded on behalf of the respondents that if the application made by the plaintiffs in the year 1905 before the Settlement Officer had been disposed of on its merits, that is to say, if the Settlement Officer had either enhanced the rent or declined to enhance it, the plaintiffs would not have lost the benefit of the section and could have claimed enhancement after a period of 15 years; but it is also contended that merely because they withdrew their petition, they have been barred for all time to come from, exercising their right to claim an enhancement of rent under S. 130-B, Ben. Ten. Act. To this latter proposition I am unable to assent. In my opinion the subject-matter of the present suit is entirely different from the subject-matter of the application made before the Settlement Officer in the year 1905.

The subject-matter of that application was whether the plaintiffs were entitled to claim enhancement under S. 130-B in that particular year, whereas the subject-matter of the present suit is whether in view of the rise in the average local prices of the staple food crops during the currency of the present term (1918-1927) the rent is liable to be enhanced. It has been held in Abdul Sattar v. Rajkishore Sah, 1930 Pat 161 = 127 IC 570, that S. 109 will not bar the maintainability of a suit under S. 7 merely because the defence taken by the defendant in the suit is the same as the objection taken by him to a previous application under S. 105 and that where in an application under S. 105, Ben. Ton. Act, for enhancement of rent the defendant contended that the rent of the tenure was fixed and was not liable to enhancement and the application was withdrawn, and more than 15 years afterwards the landlord sued for enhancement under S. 107, Ben. Ten. Act, and the defendants raised the same objection, the suit could not be held to have become barred under S. 109, Ben. Ten. Act. In that case the decisions of the Full Bench of the Calcutta High Court and of the Judicial Committee of the Privy Council were explained and it was pointed out that the question which was material to be considered was whether the subject-matter of the suit was the same as the subject-matter of the application. In my opinion therefore the plaintiff is entitled to enhancement and, the only question is at what rate the enhancement should be allowed. The learned Munsif allowed enhancement at the rate of 4 annas 6 pies in the rupee, but having regard to the present conditions and particularly to the serious economic depression, we think that it would not be fair to allow enhancement at that rate. In course of the hearing of this appeal the plaintiffs expressed their willingness to accept enhancement at the rate of half an anna in the rupee upon the existing rent and we think that in the circumstances of the case enhancement should be allowed at that rate.

Only one material point remains to be dealt with and they may be disposed of at once. The learned Additional District Judge states in his judgment that the plaintiffs have not impleaded the other co-sharer landlords and therefore their suits cannot be entertained as rent suits. The learned District Judge however in an earlier portion of his judgment, while he was reciting the facts of the case, has stated that the plaintiffs were landlords of a separate patti formed by the Collectorate batwara and allotted to them; and, as the learned Munsif has pointed out Register D which has been filed in the present suit shows that the plaintiffs are the exclusive Landlords of the estate which has been formed as a result of the partition. Thus they are fully competent to sue for rent as well as for the enhancement of the rent in the present suit and there is no question of non-joinder of parties.

I would therefore allow the appeal''s with costs and set aside the decree of the learned District Judge. So far as the claim for rent is concerned, I would restore the decree of the Munsif and so far as the claim for enhancement is concerned, I would vary the decree passed by the Munsif by allowing enhancement at the rate of half an anna in the rupee.

James, J.

I agree entirely.

It appears to be clear that there was never any actual division of this raiyati holding. The learned Munsif perceived this from the fact that the defendant who gave evidence in the case was unable to specify the plots which had been allotted to him in the so-called division. The learned Additional District Judge discussing this point did not deal with the evidence of the defendants, but based his decision on statements made by the plaintiff''s witnesses, taken out of their context, which read as a whole supported the view of the learned Munsif, and explained how it happened that before the Collectorate partition these landlords granted receipts which appeared to indicate that a division of the holding had taken place. It appears that the defendants quarrelled among themselves and set about dividing up their holding, obtaining the landlords'' consent to this proposed partition, on condition that an ekrarnama was to be executed by the tenant. No such ekrarnama was executed; and when the landlords'' estate was partitioned by the Collector, and it became necessary for the preparation of the record of rights for that partition, to specify the plots in possession of the raiyats, notice was issued to the defendants; but the holding was surveyed as one holding with their tacit acquiescence. It is impossible in the circumstances to say that there has been a sub-division of this holding; or that the landlords'' willingness to recognize such a sub-division when it was originally proposed amounts to a recognition under S. 88, Ben. Ten. Act, of a sub-division which did not in fact take place.

In Reshee Case Law v. Satis Chandra Pal, 1929 PC 134= 116 IC 396= 56 IA 179= 57 Cal 118 (PC), the Judicial Committee of the Privy Council accepted the decision of the Full Bench of the Calcutta High Court in Purna Chandra v. Narendra Nath, 1925 Cal 845= 88 IC 637= 52 Cal 894 (FB), as authority for the proposition that the provisions of S. 109, Ben. Ten. Act, barred a subsequent civil suit in a case in which the earlier claim under S. 105 was based on an alleged excess of area. A person presenting a petition under S. 105 states under sub-S. (4) of that section, what particular rule laid down in the Act for guidance of Civil Courts he desires to have applied for the settlement of fair and equitable rent of the holding in question. In the case before the Privy Council it appears that S. 52 (1) (a), Ben. Ten. Act, was thus called in aid; and the subject-matter of the subsequent suit was precisely the same as the subject-matter of the application under S. 103. In a case where S. 32, Ben. Ten. Act, is thus called in aid, a subsequent civil suit cannot deal exactly with the same subject-matter. In the present suit for enhancement the Court had to determine under S. 32, Ben. Ten. Act, the effect of the rise in prices during the decennial period of 1918 to 1927. The effect of the rise in prices between 1918 and 1927 could not possibly have been the subject-matter of an application made under S. 105 in the year 1905; and consequently, although that application in 1905 may have been withdrawn with or without permission to institute a fresh suit, the effect of the provisions of S. 109 could not be in such circumstances a bar to a suit based on a rise in prices in subsequent years.