Patna High Court
S.M. Ramkali Kuer vs Ram Bujhawan Singh on 1 February, 1951
Equivalent citations: AIR1952PAT42, AIR 1952 PATNA 42, ILR 30 PAT 325
JUDGMENT Ramaswami, J.
1. The question to be examined in these appeals is whether the plaintiff landlord is entitled to a money decree against the defendants for the years alleged.
2. It is not controverted that plot No. 874, khata No. 157, area 3.40 acres, was recorded in survey in the name of Gena and Debi Singh in equal shares. The plaintiff brought Rent Suit No. 25 of 1947 against the heirs of Gena with respect to half the area comprised in khata No. 157. The heirs of Debi Singh intervened in the suit and claimed that they had purchased by a registered kebala dated 21st January 1904 the interest of Gena. The plaintiff had brought Rent Suit No. 28 of 1947 with respect to the other half share of Khata No. 157 against the sons and grandsons of Debi Singh who were recorded in survey papers. The trial Court gave a decree in favour of the plaintiff against the heirs of Debi Singh in both the suits. The decision of the trial Court has been reversed in appeal by the learned Subordinate Judge who held that the suits were not maintainable and the plaintiff was not entitled even to a money decree in either of the suits.
3. On behalf of the plaintiff who has instituted the present appeals learned Counsel addressed the argument that the lower appellate Court was wrong in dismissing the suits outright, but, on the contrary, the plaintiff should have been granted money decrees for the actual arrear of rent due from the defendants. In my opinion the argument addressed by the learned Counsel is well founded and must prevail. It is important to remember that a suit for arrear of rent is a suit of a double character It is ordinarily a suit to enforce the charge upon the holding which is created by the provisions of Section 65 of the Bihar Tenancy Act; and a decree which has the effect of enforcing this charge can only be made when the plaint is framed in such a manner as to comply exactly with the provisions of Section 148 of the Bihar Tenancy Act. But the suit does not necessarily fail because a decree cannot be made to enforce the charge in such a manner as to entitle the purchaser at a sale in execution to annul all incumbrances. The suit is also a suit to enforce the personal liability of the tenant to pay a certain sum of money to the landlord and a decree may be made enforcing this liability where a decree cannot be made enforcing the charge under Section 65 of the Act. In this case there is no evidence that the plaintiff landlord was aware of the kebala executed by Gena in favour of the heirs of Debt Singh. When the suit was heard a witness was examined on behalf of the defendants to prove that the purchase was made and the sale deed was produced in Court at that stage. It is the admitted case that the defendants were in possession of the land and enjoyed the usufruct thereof for the years claimed. In a case of this kind it is proper that a money decree ought to be granted to the plaintiff for the arrears of rent claimed against the defendants. It should be noticed that Rent Suit 25 of 1947 is concerned with the rest of the area of plot No. 874 of Khata No. 157 and that Suit has been brought by the plaintiff against the sons and grandsons of Debi Singh who has been recorded in the survey. In my opinion this case falls within the principle enunciated in 'Jeonandan Singh v. Janki Singh', 17 Pat 451 in which the Full Bench granted money decree to the landlord since there was an issue between the parties with respect to the question of area and rental. The facts involved in the present appeals are closely parallel to the material facts upon which the decision of tile Full Bench in '17 Pat 451' is based. On behalf of the respondent Mr. Baidyanath Prasad referred to 'Keshava Prasad Singh v. Mathura Kuar', AIR (9) 1922 Pat 608. But the facts of that case must be distinguished. A suit had been brought by the landlord lor rent of a portion of a holding. The suit was dismissed by the lower Courts. On appeal tile High Court held that the suit was rightly dismissed since to decree such a suit would be in effect to allow a splitting up of the tenancy without any ascertainment of the portion of the rent which was due from the particular portion of the holding for which the rent was claimed. It should be noticed that the claim was not in respect of the entire area nor for the entire Jama and the question of apportionment necessarily arose in that case and the Court in these circumstances refused to grant a decree.
4. Learned Counsel also relied upon 'Ambika Prasad Singh v. Laxmi Ahir', 26 Pat 66 in which a suit was brought, ay the landlord for rent in respect of an alleged holding comprising 3-6 acres of land out of khata No. 16 in village Amaishi Dihra. The defence was that the holding was 6-53 acres with a different annual rental and the suit brought in respect of a part of the holding was not maintainable. It was held by the High Court that the plaintiff was not entitled even to a money decree because the suit was not really brought in respect of the holding at all, but in respect of an alleged different holding which did not in effect exist. The authority of this case is doubtiul in view of the decision of the Full Bench in 'Jeonandan Singh v. Janki Singh', 17 Pat 451. On the other hand, reference should be made to 'Rambeas Tewari v. Akhauri Raj Mohan Sahay', AIR (19) 1932 Pat 304 in which a suit was instituted for arrears of rent in respect of a part of a holding and not in respect of the whole holding. The plaintiff was granted a decree in the lower Courts. On appeal preferred by the tenants, to the High Court, it was argued that since the suit was with respect to a part of a holding it was not maintainable at all. The argument was rejected by Kulwant Sahay and Scroope, JJ. who held that the consequence of such a suit would be to treat it not as a rent suit but as an ordinary money suit and the decree that would be passed will only be treated as a money decree and not as a rent decree.
5. Upon a review of these authorities it is manliest that the plaintiff ought to be granted a money decree in both the suits which are the subject matter of the present appeals.
6. Accordingly I would set aside the decree of the lower appellate Court and order that the plaintiff should be granted a money decree for the amounts for which the decrees have been granted by the trial Court. I do not propose to make any order as to costs of this Court.
Rai, J.
7. I agree.