Patna High Court
Jwala Prasad vs Kopeya Munda And Ors. on 27 July, 1920
Equivalent citations: 59IND. CAS.890, AIR 1920 PATNA 801
JUDGMENT Jwala Prasad, J.
1. This appeal arises out of the decision of the Judicial Commissioner of Ranchi dated the 11th March 1918, reversing that of the Munsif, dated the 3rd January 1917.
2. The plaintiff is the appellant. He instituted the suit for a declaration that he was entitled to the rent of Kusum trees in possession of the defendants at the rate of Rs. 2 per tree. The claim was with respect to 40 trees said to be standing on the majruha and the gair majruha lands. The Khata number, plot number and the numbers of the trees were specified in Schedule A to the plaint.
3. The defendants stated in their written statement that they were in possession of the trees from time immemorial and that they do not pay rent for the same. They took a number of other pleas which have all been set at rest by the decision of the Munsif and have not since arisen.
4. Upon the please, two issues were framed by the Munsif: "(1) Is there any custom of paying rent for Kusum lac bearing trees? (Issue No. 9) and (2) Has the plaintiff any right to claim rent for the disputed trees?" (Issue No. 10).
5. The Munsif decided both the issues in favour of the plaintiff. He based his decision upon the village note (Exhibit 3) in the Survey Record of Rights and the other evidence on the record.
6. The learned Judicial Commissioner set aside the decision of the Munsif and dismissed the suit. As to point No. 2, (Issue No. 10) he accepted the case of the defendants that the trees were part and parcel of the original holdings and that the rent of the holdings covered that for the trees. He has based his decision upon the judgment of the Subordinate Judge, dated the 8th July 1912, (Exhibit B) in a previous suit brought by the defendant to have the ex parte rent decrees and sales of their holdings in execution thereof set aside. That judgment does not and could not decide as to whether any rent was payable for the trees or not. It was not an issue between the parties in that case. As to point No. 1 (Issue No. 9) the learned Judicial Commissioner has not referred to any other evidence in support of his finding. He has not displaced the finding of the Munsif as to the custom of paying rent for lac bearing trees. His judgment is incomplete and does not dispose of the appeal before him. It is too meagre for a judgment of a first Appellate Court reversing that of a Trial Court and must be set aside.
7. It may be noted that the learned Vakil on behalf of the appellant has referred to the evidence of defendant Kopeya Munda to show that he admitted that only 17 trees appertained to the holding and that the remaining trees were on the gair majruha of the plaintiff with which the defendants had no concern. This is a question of evidence which should have been dealt with by the lower Appellate Court.
8. The learned Vakil on behalf of the respondents urged that the present appeal abated on account of the death of Kopeya Munda, respondent No. 1, who died more than six months ago and no substitution was made in his place. No doubt, the appeal abated so far as Kopeya Munda is concerned, but as Kopeya Muoda and Mangal Munds, the other defendant, were joint holders of the lands in suit they were both jointly and severally liable for the claim of the plaintiff, and the death of one of them would not affect the claim of the plaintiff as against the other upon the principle of Section 43 of the Contract Act. The principle was applied in the case of Joy Gobind Laha v. Monmotha Nath Banerji 33 C. 580 and Beradar Singh v. Bacha Mahto (Raghunandan Mahton) 54 Ind. Cas. 39 : 1 P.L.T. 55 : (1920) Pat. 9 : 5 P.L.J. 32 : 2 U.P.L.R. (Pat.) 4, In my opinion, after the death of one of the joint tenants, the landlord is entitled to proceed against the surviving recorded tenant and his suit cannot be dismissed simply because he does not bring the heirs of the other tenants on the record, I do not decide in this case as to whether the decree in such a case will be a rent decree or a money decree.
9. The case is accordingly remanded to the Judicial Commissioner for re-hearing the appeal and disposing of it in accordance with law. The costs will abide the result.