Patna High Court
Babu Ram Rattan Prasad vs Jang Bahadur Singh Alias Jangi Singh And ... on 12 May, 1921
Equivalent citations: 62IND. CAS.47
JUDGMENT Jwala Prasad, J.
1. The plaintiff No. 1 is the appellant. He is a part proprietor in Mouza Bhatui, Fergana Paplakh, bearing tauzi No. 3759. He instituted Suit Nos. 3005 on the 27th of February 1915, out of which this appeal has arisen, for recovery of rent with respect to 24 bighas of land at an annual rental of Rs. 51 9-6 for the years 1319 to 1322. The land is held by defendants Nos. 1 to 5. Defendant No. 6, one of their co-sharers, died since the institution of the suit and his name was accordingly struck off on the 2nd of January 1917. Defendants Nos. 7 to 12 are the co-sharers, along with the plaintiff, of 11 annas, 6 pies, 5 karants, 13 masants, 10 decimals of the village. They were made defendants on the ground that the collection of rent of their share was joint, but that they did not join as plaintiffs in the suit, Defendant No. 12, Maharani Janki Kuer, subsequently, on her application, was made plaintiff by the order of the Court, dated the 1st of April 1916. Defendant No. 10, Babu Binda Prasad, one of the co-proprietors, purchased the share of defendant No. 3 in the holding in question and he sublet it to Haliwant Rai. He disclosed this in his written statement, dated the 6th of September 1916, and accordingly by the order of the Court, dated the 18th September 1916, Haliwant Rai was also made defendant in the suit as defendant No. 12 on renumbering all the defendants, after the removal of Maharani Janki Keor, originally defendant No. 12, from the category of defendants to that of plaintiff. The tenant defendants Nos. 1 to 5 filed one written statement claiming the land as their mukarrari. They also pleaded payment of rent and also that the suit of the plaintiff for the entire rent of 11-annas odd share was not maintainable, inasmuch as defendant No. 10, one of the co-proprietors, had by his purchase of the share of defendant No. 3 become a co-tenant of the land in question. Defendant No. 3 in his written statement supported the plea of the defendants, stating further that he had sublet the share in the holding purchased by him to Haliwant Rai at an annual rental of Rs. 108, stipulating that be, Hailwant Rai, would pay the annual rent of the purchased share, Rs. 7-5, to the landlord recorded in the khatian, and the remaining Rs. 3-3 to himself. Haliwant Rai in his written statement stated that he had paid the rent for 1 bigha 7 kathas 16 dhurs purchased by defendant No. 10 and sublet to him according to the aforesaid stipulation.
2. Upon the pleas taken in the written statement of the several defendants, the following issues were framed by the Munsif for decision:
What is the annual rent?
2. Whether rent for the period in suit was paid?
3. Whether in Suit No. 3005 a portion of the rent claimed land was purchased by defendant No 10? If so, whether the Suit No. 3005 for the entire rent is maintainable?
4. Whether the rent claimed lands are morkarrari lands?
3. Issues Nos. 1 and 2 were decided in favour of the plaintiff, namely, that the rental of the entire holding was Rs. 51-9-5 as mentioned in the khatian, besides cess, and that the plea of payment was not proved. Issue No. 4 was decided in favour of the tenant defendants by holding that the rent claimed land was their mukarrari. These three issues have not since been questioned either in the Court below or in this Court and have, therefore, become final; so also the finding as regards the first part of Issue No. 3. As to whether defendant No. 10 is the purchaser of a portion of the rent claimed land, the finding of the Munsif is in the affirmative. The dispute now hinges round the latter part of Issue No. 3. Both the Courts below have dismissed the plaintiff's suit on the ground that defendant No. 10, being a co-sharer himself, by his purchase of the share of a co-tenant, defendant No. 3, has also become a tenant of the holding and consequently a decree for rent for the entire share of 11 annas odd pies cannot not be made.
4. The Munsif says that the decree for the share of the plaintiff also cannot be made, inasmuch as his snare is not known. In short, the Courts below have held that the suit for the entire rent of 11-annas odd pies share, in which the plaintiff is a co-sharer, is not maintainable. It is not disputed that the plaintiff and the defendants Nos. 7 to 11 and Maharani Janki Koer originally, defendant No. 12, are the proprietors of 11 annas odd pies and that the collection of this share is separate from the remaining share of 4 annas odd, and the suit of the plaintiff for the entire of 11 annas odd, on the ground that the other co-sharers did not join in the suit, is maintainable. One co-sharer is entitled to bring a suit for the entire rent payable to him and the other co-sharers when the others do not join in the suit. He cannot, however, maintain the suit for his share only in the absence of proof of such an arrangement between himself, his co-sharers and the tenants. The plaintiff did not, therefore, and could not, bring a suit for his separate share. He was entitled to bring a suit for the entire rent of the 11-annas joint share. This is now concluded by the authority of the Privy Council in the case of Pramada Nath Roy v. Ramani Kanta Roy 35 C. 331 : 7 C.L.J. 139 : 12 C.W.N. 249 : 10 Bom. L.R. 66 : 85 I.A. 73 : 18 M.L.J. 43 : 3 M.L.T. 151 (P.C.) vide also Baikantha Nath Sen v. Ramapati Chatterjee 45 Ind. Cas. 767 : 27 C.L.J. 101. As a matter of fact, the Munsif was of the same opinion, for he decreed the plaintiff's cialm in Suit No. 3007 of 1915, which was tried analogously with the present suit. I do not thick that the right of the plaintiff to institute such a suit is in the least affected by the fact that one of the co-sharers purchases a portion of the holding. It is obvious that the plaintiff could have no control over the purchase made by his co-sharer of a portion of the holding and, therefore, his right to realise the rent cannot thereby suffer. Section 22, Clause (2), of the Bengal Tenancy Act (VIII of 1885) provides for such an emergency. A co-sharer on acquiring a tenant's right in the land by transfer is entitled "to hold the land subject to the payment to his co-proprietors...of the shares of the rent which may be from time to time payable to them, and if such transferee sublets the land to a third person, such third person shall be deemed to a tenure holder or a raiyat, as the case may be, in respect of the land." Defendant No. 10 is, therefore, liable to pay to the co-sharers the rent which was payable by defendant No. 3, the co-tenant. In other words, his possession with respect to the land so purchased is that of the co-tenant so far as the other co-proprietors are concerned. In the present case he has further sublet the land to defendant No. 12, Haliwant Rai. The latter should, therefore, be deemed to be a tenure holder or a raiyat, as the case may be, in place of the original vendor, defendant No. 3. The illustration to the said clause makes it clear. As a matter of fact, in the sub-lease granted by defendant No. 10 to Haliwant Rai, defendant No. 12, it has been clearly stipulated that the latter will pay Rs. 7-5 share of the rent due from 7 kathas, 16 dhurs to the landlords mentioned in the khatian, and Rs. 3-3 to defendant No. 10 as his share.
5. There is, therefore, no difficulty in preparing an ordinary decree, as is usual, in such a case, and as has been done in the analogous suit No. 3007. The rent, if any, paid by defendant No. 10 or Haliwant Rai in respect of the land purchased by the former and sublet to the latter is to be deducted. Both the defendant No. 10 and the defendant No. 12, Haliwant Rai, in their written statement pleaded payment of the rent due from the land purchased by the former. No doubt the Munsif says that there is no evidence to prove the alleged settlement by defendant No. 10 to Haliwant Rai, but the Court has not taken into consideration the written statement of both defendant No. 10 and Haliwant Rai upon the point. I, therefore, think that the question as to whether Haliwant Rai is a leasee, and if so, whether he has paid rent for the share of defendant No. 3 in the holding sublet to him has not been investigated and there does not appear to be a clear issue on the point. It has also not been investigated as to whether defendant No. 10 himself has made any payment or not to the other co-sharers. It is, therefore, necessary to remand the case to the Court below to dispose of the case after deciding the aforesaid points. The plaintiff's suit has been disposed of on a preliminary point, namely, that it is not maintainable. I set aside the decision of the Courts below on the subject.
6. The result is that the case is remanded to the lower Court for trial by the Munsif of the aforesaid issue and to dispose of the suit in accordance with his finding and in the light of my remarks in the judgment.