Patna High Court
Partab Mahton And Ors. vs Musammat Wazirunnisa And Anr. on 25 February, 1925
Equivalent citations: 88IND. CAS.687
JUDGMENT Adami, J.
1. The plaintiffs, respondents in this second appeal, have a 7 annas odd share in the two villages of Nathupur and Kazi Chak Slier Muhammad. Though the two villages have separate tauzi numbers and separate sadar jama, the co-sharer landlords have treated the lands of the two villages as of one village and kept joint collection papers for both villages. The predecessor-in-interest of the plaintiffs had 7 bighas 6 kathas khudkast land in the villages and in 1886 she purchased 37 bighas 5 kathas in execution of her decree for arrears of rent against Net Lal Mahto, Partap Mahto and Sarju Mahto, who had held that area as their raiyati kasht land. The 37 bighas 5 kathas-thus become her khudkasht land which, with the 7 bighas 6 kathas she had held before, now amounted to 44 bighas 11 kathas. In 1889 she gave 9 bighas 6 kathas of this khudkasht land to Nasiruddin, one of the co-sharer landlords. According to the plaint these khudkasht lands were settled with tenants on bhaoli terms, the tenants paying to each co sharer his share, and in addition to this making a payment of one rupee per bigha to the plaintiffs' ancestor out of the tenants profit. In 1892 the bhaoli rents were commuted to nakdi but the payment of rupee one per bigha out of profits was continued.
2. Sometime before 1896 the plaintiff No. 1 came into possession of a 4 annas 9 dam odd share in the two villages and plaintiff No. 2 came into possession of a 2 annas 12 dam share, so that together they hold a 7 annas odd share. In 1896 plaintiff No. 1 let out her share, including khudkasht lands, in ijara to Musammat Bechan Kuer, and did not get direct possession again until 1896. In 1897 plaintiff No. 2 gave his share, including khudkasht lands in ijara to Jhari Lal, and he was still in possession as ijaradar when, in 1903, a fresh settlement of khudkasht lands was made. Under the terms of this fresh settlement the tenants were to pay to each of the co-sharer landlords his proportionate share of the annual rental khudkasht lands at the rate of Rs. 5-13 per bigha, and were to pay, in addition, to the plaintiffs one maund of polished rice per bigha but of their profits.
3. It was the plaintiffs' case that the father of defendant No. 1 and the defendants Nos. 2 and 3 cultivated 10 bighas 19 kathas in the two villages as their raiyati kasht land at a rent of Rs. 5-13 per bigha, the total rent amounting to Rs. 63-10-7, and that they had executed two kabuliyats in respect of this raiyati holding, one in 1894 and another in 1898, the latter enhancing the rent payable under the former. The plaintiffs alleged that in the-settlement of khudkasht lands made in 1903, the. father of defendant No. 1 obtained settlement of 17 bighas 5 kathas out of the 35 bighas 5 kathas left after the gift of 9 bighas 6 kathas to Nasiruddin, at the rate of Rs. 5-13 per bigha, together with one maund of polished rice per bigha to be paid to the plaintiffs. At the same time Nasiruddin settled 5 bighas 4 kathas out of the 9 bighas 6 kathas given to him with the father of defendant No. 1 at the same rate of rent and the same terms as to delivery of one maund of polished rice per bigha. The 17 bighas 5 kathas were contiguous to the holding of 10 bighas 19 kathas.
4. In 1903 the father of defendant No. 1 took a thica of the share of another co-sharer landlord. Musammat Halimunnissa, in the name of his grandson for a term of 7 years.
5. In 1908 the survey and settlement operations started in the villages, and khewat and khatian were prepared for each of them separately. It is alleged by the plaintiffs that in the course of the settlement operations, defendant No. 1 and his nephews, defendants Nos. 2 and 3, took advantage of the fact that they held a thica of Musammat Halimunnissa's share, and managed to get the 17 bighas 5 kathas of khudkasht, settled with them by the plaintiffs, as well as the 5 bighas 4 kathas, settled with them by Nasiruddin, amalgamated with 10 bighas 19 kathas which they did hold as raiyati kasht under the kabuliyats, the whole 33 bighas 8 khatas being described in the Record of Rights as the kaimi raiyati kasht of the defendants, at a rental for the whole of Rs. 63-10-7 which was really the rental payable for the 10 bighas 19 kathas alone. In the Record, of Rights 12.97 acres were recorded against khata No. 113 of Nathupur with, an annual jama of Rs. 63-10-7, and 7.57 acres were recorded against khata No. 121 of Kazi Chak Slier Muhammad with a remark that the jama was included in that of khata No. 113 of Nathupur. The plaintiffs alleged that, in order to keep them in ignorance and to prevent them taking any steps to get the record corrected within the time allowed, the defendants continued to pay rent for the 10 bighas and separate rent for the 22 bighas of khudkasht land till 1914, and then from 1915 ceased to pay rent either for the kasht land or for the khudkasht.
5. The plaintiffs in the plaint state that they do not ask for a declaration of their khudkasht right or of the want of title in the defendants; nor do they seek to recover possession of the khudkasht lands; but they do claim that the defendants are not entitled to hold the 22 bighas 9 kathas of the lands settled with them as khudkasht without payment of rent, and that the plaintiffs are entitled to get their proportionate share of rent for the 22 bighat 9 kathas at the rate of Rs. 5-13 alleged by them to have been agreed on at the time of settlement, and also to get one maund of polished rice per bigha from the tenants' profit.
6. Thus the claim in the suit from which this appeal arises is for the plaintiffs' proportionate share of the rents for 1323 F.S. to 1327 F.S. of the 10 bighas 19 kathas at the rate mentioned in the kabuliyat of 1898 and also of the 22 bighas 9 kathas at the rate which they allege was agreed on at the time the settlement of khudkasht lands was made. In case the Court is not satisfied as to their allegation of the rate fixed at the time of the settlement of these 22 bighas 9 kathas, the plaintiffs ask the Court to settle a fair and equitable rent for those lands and to give them a decree for the arrear rent of those lands at the rate so settled. A claim is made for the value of polished rice at the rate of one maund per bigha for the years in suit.
7. None of the other co sharers were made parties to the suit either as plaintiffs or defendants; the plaintiffs allege that those co-sharers refused, to join them or take any action.
8. The defendants resisted the suit on the ground that, being instituted more than six years after the final publication of, the Record of Rights, it was barred by limitation, and that it was not maintainable since all the co-sharer landlords had not joined in the suit. They denied that the lands were khudkasht, or that they were settled with the father of defendant No. 1 on the terms and rates alleged by the plaintiffs. They denied also the right of, the plaintiffs to claim the value of any polished rice as such payment would amount to an abwab. They controverted the story put forward by the plaintiffs and claimed that all the lands were their ancestral kasht lands and the rental for all was Rs. 63.
9. The Munsif found that the kabuliyats of 1894 and 1898 were genuine and executed by the father of defendant No. 1, that, though undue influence was apparent as to some of the terms of the kabuliyats, none was used so far as the agreement to pay Rs. 63-9-7 for the 10 bighas 19 kathas was 1 concerned and that jama was paid up to the survey. He was satisfied that the remaining 22 bighas 9 kathas were khudkasht as alleged by the plaintiffs, and not ancestral raiyati lands of the defendants, and that these khudkasht lands were settled with defendant No. 1's father in 1903. He decided, however, that the plaintiffs' had knowledge of the survey proceedings, and as the suit was instituted more than six years from the date of the publication of the Record of Rights, the suit was time-barred so far as the claim to the additional rent was concerned. As to the alternative prayer of the plaintiffs for a settlement of fair and suitable rates for the khudkasht lands, the learned Munsif held that the plaintiffs not being sole landlords, and the other co-sharers not having joined, the claim for assessment and for additional rent was barred by the provisions of Section 188 Of the Bengal Tenancy Act. As a result of his findings the learned Munsif granted the plaintiffs a money decree for Rs. 113 only as representing their share for the years 1323 to 1326 F.S. of the rent recorded in the Record of Rights as being payable for all the land in suit. He disallowed the claim for the value of polished rice, this payment in kind being an addition to the rent and contrary to the provisions of the Bengal Tenancy Act.
10. On appeal the learned Subordinate Judge has held that the finding of the Munsif to the effect that Rs. 63 is the jama for the 10 bighas and not for the, entire lands is conclusive because the defendants did not file a cross appeal. It is obvious that the Subordinate Judge has expressed the position wrongly the defendants had proved successful on the main question in the suit, namely, whether, they were liable to pay more than the rent recorded in the Record of Rights for the lands in suit; there was no occasion for them to appeal. The whole case was before the Subordinate Judge on appeal, and what he apparently meant to say was that the finding of the Munsif on this question was not contested before him.
11. The Subordinate Judge overruled the Munsif on the question of limitation, holding that the suit was within time being a suit for assessment of fair and equitable rent, and having been instituted within 12 years from the date of the publication of the Record of Rights when the plaintiffs' rights to additional rent was challenged.
12. With regard to the finding of the Trial Court that the suit for assessment was barred by the provisions of Section 188 of the Bengal Tenancy Act, the learned Subordinate Judge relied on the case of Dhananjoy Manjhi v. Upendranath Deb 46 Ind. Cas. 488 : 22 C.W.N. 685 and held that Section 188 of the Bengal Tenancy Act had no application, the bringing of a suit for the assessment of rent not being an act which a landlord is authorized or required to do by the provisions of the Bengal Tenancy Act. He found, therefore, that the suit was maintainable at the instance of the two co-sharers landlords without joining the rest as parties.
13. The learned Subordinate Judge proceeded to assess the rent for the 22 bighas odd at the rate of Rs. 5-13 a bigha, and held that the defendants, having been in occupation of the lands, were in justice and equity bound to pay rent for the past years in suit, and the settlement with them having been proved, on assessment, the rate of rent claimed by the plaintiffs, having been found to be the right rate, the plaintiffs were entitled to a decree for the past years at that rate. He rejected the claim of one maund of polished rice per bigha, in that this did not form part of the rent. As a result he decreed the appeal except as to this claim for the value of polished rice.
14. I have stated the facts of the case in some detail because it will be necessary to distinguish them from the facts of the various cases relied on by the parties.
15. Two points are taken by the learned Counsel for the appellants; the first is that the plaintiffs' suit cannot succeed in the absence of the other co-sharers, and Section 188 of the Bengal Tenancy Act is relied on, the second point is that the suit being a suit for assessment of rent no decree could be granted for arrears of past years at the rate newly assessed by the Court. The finding of the lower Appellate Court with regard to limitation has not been assailed in this Court and the suit has been treated as a suit for assessment of a fair and equitable rent of lands for which the Record of Rights omitted to mention a rent. It is to be noticed that the learned Subordinate Judge first assessed a rent and then proceeded to treat the suit as an ordinary suit for arrears of rent because the rate of rent assessed by him coincided with the rate claimed in one of the alternative prayers of the plaint. It is clear that there was a necessity to assess the rent as prayed for in the other alternative prayer, for the plaintiffs had no document or other reliable evidence to show what rate of rent was agreed upon at the time of the settlement of the khudkast lands with the defendants.
16. With regard to the first point taken by the appellants, namely, the maintainability of a suit for assessment by a co-sharer landlord, in the case of Darik Dhakai v. Aswini Kumar Nag 20 Ind. Cas. 658 : 18 C.W.N. 942 a co-sharer landlord brought a suit for arrears of rent and also for additional rent on the basis of a kabuliyat in which there was an agreement to pay additional rent for additional area. On measurement of the holding it was found that there was an addition of 10 bighas. The other co-sharers were made parties defendants. It was held that the suit was a suit under Section 52 to which Section 1898 applied, and that the agreement to pay additional rent in the kabuliyat did not take it out of that section. That case is to be distinguished from the present one. Here we have no agreement as to additional lands and it is hot a case of lands being found on measurement to be in excess of the area stated in the kabuliyat. We have here a prayer of assessment of the rent of lands settled under a separate agreement and not forming part of the area settled by the kabuliyats of 1894 and 1898. In Gopal Chunder Das v. Umesh Narain Chowdhury 17 C. 695 : 8 Ind. Dec. (N.S.) 1004 the proprietors of an 8-annas share claimed from a tenant rent for excess area under Section 52 and for enhanced rent under Section 30 and made the other co-sharers parties defendant. It was found that the land in excess was held as part of the original holding. This was clearly a case coming under Sections 52 and 30 of the Tenancy Act and there can be no question that the provisions of Section 188 apply to a suit under either of those sections. In the present case, as I have said before, assessment of rent is asked for with regard to lands not found to be part of the original holding.
17. Mr. Jayaswal relied on the decision of their Lordships of the Privy Council in Jatindra Nath Chowdhri v. Prasanna Kumar Banerji 8 Ind. Cas. 842 : 15 C.W.N. 74 : 9 M.L.T. 1 : 13. C.L.J. 51 : 8 A.L.J. 1 : 13 Bom. L.R. 1 : 21 M.L.J. 92 : 88 C. 270 : (1911) 2 M.W.N. 149 : 38 I.A. 1 (P.C.) but that was a case of enhancement of rent and is not relevant, for there is no question of enhancement before us. Their Lordships ruled that in cases to which Section 188 applies it is hot sufficient to make the other co-sharers landlords parties defendant they must join as plaintiffs" to make the suit maintainable.
18. On the other hand in the case of Khondakar Abdul Hamid v. Mohini Kant Saha Chaudhuri 4 C.W.N. 508 the defendants, tenants of the original holding under the plaintiffs and their co-sharers, took possession of certain lands by gradual encroachment. The plaintiffs brought a suit for recovery of their share of the encroached lands or in the alternative for assessment of rent and made their co-sharers parties. It was held that the defendants must be treated as tenants of those lands apart from their tenancy in respect of the holding, and that those lands formed a new holding and the rent assessed upon it would be a new rent in respect of the new holding, and that a suit for the assessment of rent is not an act that is authorized by Section 188 of the Bengal Tenancy Act and Section 52 does not apply. In the present case the co-sharer plaintiffs are asking for an assessment of the rent of the 22 bighas claimed to be khudkasht and not for an assessment of the rent of the 10 bighas. If they had claimed rent, not merely of the additional 22 bighas in possession of the defendants over and above the 10 bighas but in respect of the entire quantity of land in possession of the defendants including the 10 bighas, according to the decision in this last case I have mentioned, Sections 52 and 188 would have applied. That is to say, Sections 52 and 188 will apply where the plaintiffs contend that there has been an addition to the original holding. That is not the contention in the present case.
19. In Gobind Chandra Pal v. Hamidullah Bhuian 7 C.W.N. 670 the defendant executed a kabuliyat in favour of one of the co-sharer landlords with respect to a quantity of land proportionate to that co-sharer's share in the entire holding. The co-sharer landlord sued the defendant for rent of land in excess of the area for which rent had been previously paid. The other co-sharer was not made a party. In the kabuliyat the defendant had agreed to pay additional rent for lands found on measurement to be in excess. Prinsep, J., held that as the plaintiff did not sue under the general right, declared by Section 52 to be with a landlord to assess rent on excess lands but on the kabuliyat under which the right to assess such rent on the specific share was accepted by the defendant, Section 188 did not apply. The Court was not called on to consider what was the rent payable on the entire holding. The facts in that case are distinguishable from those in the present case inasmuch as we find from the plaint in this case that the agreement at the settlement of the khudkasht lands was that the defendants should pay to each of the co-sharer landlords his proportionate share of the rent, paying in addition the one maund of polished rice to the plaintiffs, who in making the settlement seem to have acted agents of all the co-sharers.
20. The learned Subordinate Judge relied on the case of Dhananjoy Majhi v. Upendra Nath Deb 46 Ind. Cas. 488 : 22 C.W.N. 685 and that case had also been cited by the respondents. There the tenants lands had been recorded in the Record of Rights as liable to be assessed with rent. A co-sharer landlord brought a suit to have the rent assessed, and made his other co-sharers defendants. The defendants contended that the land was held rent free. It was urged that under Section 188 the suit was not maintainable. Richardson, J., after referring to the cases of Khondakar Abdul Hamid v. Mohini Kant Saha Chaudhuri 4 C.W.N. 508, Barhamdat Missir v. Krishna Sahay 20 Ind. Cas. 910 : 18 C.W.N. 466. Assanullah Bahadur v. Mohini Mohan Das 26 C. 739 : 13 Ind. Dec. (N.S.) 1072 and Harihar Pande v. Karamat Hosseiri 4 Ind. Cas 175 : 9 C.L.J. 493 held that the right to claim assessment is consistent with and arises out of the general law and land revenue system of the country, and that the right to sue for assessment is not limited by the provisions of Section 188.
21. There cannot be any doubt that the right to sue for assessment is a right given by the general law and that Section 188 will not apply in a case like the present one. It cannot be held that the assessment was made under Section 52 or under Section 158(i)(d) of the Bengal Tenancy Act, the former section applies, as shown by the decisions I have cited, to cases where the area of a tenure or holding has increased, here rent is claimed for lands as forming separate holdings under separate agreements; the clause of the latter section refers only to a determination of the existing rent, and in the present case there was no existing rent, so the Court was asked to fix one.
22. The question next arises, whether under the general law a suit by a co-sharer landlord for an assesment of the rent of a tenant's holding is maintainable where the other co-sharers have not been made parties either as plaintiffs or defendants. It is to Dl noticed that in the various cases noted above except in the case of Gobind Chandra Pal v. Hamidulla Bhutan 7 C.W.N. 670 the other co-sharers were made parties defendants to the suit for assessment; in the present case the plaintiffs have not made their co-sharers parties to the suit at all and the plaint tells us that the co-sharers refused to take any action; they are apparently satisfied with the rent now paid to them in accordance with the Record of Eights. Two of the co-sharers come for-ward and ask for an assessment of the rent of the 22 bighas and for their proportionate share; the other co-sharers are vitally interested. It may be that it was unnecessary to join the other co-sharers as plaintiffs as Section 188 does not apply, but surely they should have been made parties defendants, so that the assessment when made might bind all equally. As pointed out by the learned Munsif, great hardship will be caused to the tenants defendants if each of the other co-sharer landlords is left free to bring a separate suit for assesment; not only may there ensue a multiplicity of suits, but also the tenant, if different assessments are made in the separate suits, will be uncertain as to what is really the assessed rental. No really effective decree can be made in the absence of the interested co-sharers and there can be no finality as to what is really the fair and equitable rent. As in a partition suit so in a suit for assessment all the interested persons should be made parties.
23. I am of opinion that as the other co-sharers were not joined as parties in the suit, the suit, so far as it sought for assessment of the lands belonging to the co-sharers jointly, is not maintainable.
24. With regard to the second point taken in the appeal, namely, that the plaintiff was not entitled to claim rent in arrears at the rate to be assessed as fair and equitable in the suit, as pointed out by my learned brother, Das, J., in Gobind Lal Sijuar v. Ramsaran Lal 68 Ind. Cas. 433 : 2 P.L.T. 642 a suit for the determination of a fair and equitable rent proceeds on the assumption that no rent has hitherto been paid by the tenant, and when a landlord claims fair rent in respect of past years for which rent has already accrued due, a suit for determination of fair and equitable rent does not lie. No doubt it has been held Jagannath Manjhi v. Juman Ali Putwari 23 C. 247 that in cases under Section 52 of the Bengal Tenancy Act arrears of rent can be claimed for the additional area, but, in those cases the rent of the holding is known and proportionate addition is made for the excess area. In suits for assessment of a fair and equitable rent it is understood that rent has not been settled or paid hitherto and the Court is asked to determine the rent to be paid in future The learned Subordinate Judge states--"The appellants did allege that the lands were settled with them (the present appellants) at the rate of Rs. 5-13 per bighas This contention has been found to be true and correct". As a matter of fact then has been no such finding. The Munsif in fact found that the 22 bighas were settled without any jama. The Subordi nate Judge made an assessment of what a fair and equitable rent would be and found that a rate of Rs. 5-13 per bigha, the amount claimed by the co-sharer landlord was fair and equitable. There is no finding that the tenants ever paid rent for the 22 bighas, and there is no real finding that at the time of settlement a rate of Rs. 5- 13 a bigha was agreed upon. Under the circumstances it maybe taken that it is not found that up to the date of suit any rent had been settled for the 22 bighas, or paid, and, therefore, the assessment now made can only have reference to future years.
25. The suit for assessment of rent having been found not to be maintainable the appeal must succeed, and the decree of the lower Appellate Court must be modified to this extent, that the plaintiffs will be declared entitled to a money-decree for the sum of Rs. 113 only, in respect of the rent of the lands in suit for the years 1323 to 1326 F.S. The appellants will get their costs throughout.
26. The cross-appeal against the decision of both the lower Courts that the alleged stipulation for payment by the tenant of one maund of polished rice per bigha would amount to an illegal imposition under the provisions of Section 74 of the Bengal Tenancy Act, must fail. It is clear from the findings of the Courts that this payment would be an addition to the actual rent and would not form an integral part of the same." The cross-appeal is dismissed with costs.
Das, J.
27 I agree.