Sundar Pandit vs Mahadeo Prasad and Others

Fazl Ali, J.—This is a Letters Patent appeal from the decision of Dhavle, J. in a second appeal arising out of a suit instituted by the plaintiff-appellant for a declaration that the decree passed in a certain rent suit was not a rent decree and that the proceedings taken in execution of that decree did not affect the holding on possession of the plaintiff as a usufructuary mortgagee.

It appears that defendant 1 is the landlord of Mauza Dulahi. In this mauza there was a holding of 117 bighas 2 kathas 16 dhurs bearing a rental of Rs. 281-14-3 per year including cess. Defendant 1 who owned an eight annas share in the village brought a suit for rent in respect of his share of the rent due and framed it u/s 148A, Ben. Ten Act, making his other cosharers pro forma defendants. The plaint of the suit is Ex. 5, and in para. 3 of the plaint it was alleged that the original holding consisted of 117 big has odd with a rental of Rs. 281-14-3; but at the end of the plaint there is a statement showing that out of the total area defendant 1 was in possession of 94 bighas 4 kathas 5 dhurs and defendants 2 to 5 were in possession of 22 bighas 18 kathas 10 dhurs. The plaint also gave an account of the dues from these two sets of defendants, according to which defendant 1 owed Rs. 566-15-6 and defendants 2 to 5 owed Rs. 34-8-0. These figures were arrived at on the basis that the rental of 94 bighas odd which was in possession of defendant 1 was Rs. 226-11-0 and that of 22 bighas odd which was in possession of defendants 2 to 5 was Rs. 55-3-3. At the end of the plaint it was stated that:

If there be some difficulty in passing a decree for the entire arrears of rent jointly against all the principal defendants, then separate decrees may be passed against defendant 1 and defendants 2 to 5 to the extent of their liability according to the account given in the plaint but so as to make the rent decree effective under the Tenancy Act against both sets of defendants.

It appears that at the trial of the suit the pleader appearing for the plaintiff-landlord did not dispute that the two sets of defendants were separately liable for the amounts shown to be due against them respectively in the account given by him in the plaint, and the learned Munsif, on examining the kabuliyat under which the land was held, came to the conclusion that the liability of the two sets of defendants was separate. In this view the suit was decreed on contest against defendants 2 to 5 of the rent suit and ex parte against the other set of defendants who did not appear to contest the suit.

After the decree in the rent suit the plaintiff-landlord who had obtained the decree in that suit applied for the execution of the decree, and in the execution petition he asked that the decree may be executed against the two sets of defendants for the realisation of the amounts decreed against them respectively by the attachment and the sale of the lands in possession of these defendants. In the execution petition also it was mentioned that the decree had been passed u/s 148A, Ben. Ten. Act, and the decree was to be executed in the manner provided under the Bengal Tenancy Act.

Now, the question is whether it can be held upon these facts that the decree which is sought to be impunged in the present suit was not a rent decree, and the proceedings taken in execution of that decree did not affect the holdings in respect of which the decree had been obtained. The learned advocate for the appellant pointed out that, strictly speaking, there ought to have been two suits in respect of the two holdings. There can be no doubt on the findings of the Munsif in the suit that the original holding of 117 bighas odd had been split up into two holdings and these holdings were in the possession of different persons. The plaint of the rent suit further shows that the suit had been brought to recover rent for different periods in respect of the two holdings. There can, therefore, be no doubt that two separate causes of action were improperly joined in the suit for rent; but the question to be decided is, first, whether the decree passed by the Munsif was without jurisdiction and, secondly, whether it should not be treated as a rent decree, merely because the two claims were improperly joined. Section 99, Civil P.C., provides in clear terms that:

No decree shall be reversed or substantially varied nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.

This shows that the decree could not be reversed merely on the ground of misjoinder even in a proceeding by way of appeal arising out of the suit in which the decree was passed. There was no appeal from the decree, and no objection was raised by any of the defendants concerned to the frame of the suit on the ground of misjoinder of causes of action. In my opinion, it is now too late for the plaintiff to question the validity of the decree, and in the present suit the plaintiff cannot be heard to say that the decree was without jurisdiction.

As to whether the decree had the effect of a rent decree, it is enough to refer to the decision in Prafulla Nath Tagore v. Satya Bhusan Das AIR 1929 P.C. 171 . In that case it was pointed out by the Judicial Committee of the Privy Council that the CPC permitted a plaintiff to join in one suit claims against a defendant in respect of more than one tenure, and such a suit can result in a decree or decrees to sell the tenures separately so as to give the purchaser power to annul the in cumbrances on each separate tenure and there is nothing in the CPC or the Bengal Tenancy Act, to prevent the consequent decrees or orders from being so moulded as to enable their provisions to apply distributively to the separate holdings, in respect of which the suit is being brought, and that, if the original suit is brought in respect of separate tenures, the plaintiff must see, that the subsequent process takes such a form that the tenures are in fact sold separately, so that each may be redeemed separately by the incumbrancers of such separate part, pursuant to the provisions of Section 170, Ben. Ten. Act. Their Lordships also observed that it would be a misfortune to find a system of procedure so rigid as to lead to an illogical and inconvenient result and that their Lordships were not prepared to hold that any defect existed in the suit which was before them. The main ground upon which this case can be distinguished from the case which was before the Judicial Committee is that whereas in the latter case the same defendants held the separate tenures, in the present case the two holdings were in the possession of different sets of defendants. In my opinion, however, that is not a material difference. The question which has to be considered is whether the plaintiff in the rent suit had taken steps to ensure that separate decrees were passed against the different sets of defendants in regard to the amount respectively due from them in respect of the holdings in their possession. As I have already stated, one of the prayers made by him in his plaint was that if separate decrees had to be passed in the suit, they should be passed in such a manner as to make the rent decree effective under the Tenancy Act against both sets of defendants. It appears that in passing the decree the Court moulded the decree in such a manner as "to enable the decree to apply distributively to the two holdings" in respect of which the suit was brought and the execution proceedings were also moulded on the same lines. Thus, each set of defendants knew what they had to pay, and the execution was taken out by the landlord not against the entire 117 bighas odd but against the holdings in the possession of the two sets of defendants respectively. In my opinion, therefore, the view taken by the learned Judge of this Court that the principle laid down by their Lordships of the Judicial Committee in the case to which reference has been made, fully applies to the present case, is correct. The appeal accordingly fails and I would dismiss it with costs.

Harries C.J.

I agree.