Calcutta High Court
Durlav Mondal And Ors. vs Hem Chandra Mukerjee And Anr. on 26 March, 1925
Equivalent citations: 89IND. CAS.177, AIR 1926 CALCUTTA 188
JUDGMENT Chakravarti, J.
1. This is an appeal by the defendants and arises out of a suit for rent at an enhanced rate. It appears that during the pendency of the suit in the Trial Court one of the co-sharers owning 4-annas of the proprietary rights compromised the suit with the defendants acknowledging them to be raiyats at fixed rate. After this compromise was filed an objection was taken on behalf of the defendants that the suit after the compromise ceased to be a suit by the whole body of the landlords and, therefore, was not maintainable.
2. The learned Munsif held that the suit having been properly instituted could not be rendered incompetent by one of the co-sharers compromising the suit with the defendants. That view was upheld on appeal by the learned District Judge.
3. The learned Vakil for the appellants, the defendants in the suit, urged two points before me. The first point was that in the circumstances which had happened the suit was incompetent as a suit for enhancement of rent. The second point was that upon the facts found the presumption under Section 50 of the Bengal Tenancy Act ought to have been raised in favour of the defendants.
4. As to the first point it appears to me that the question is covered by the authority of the case of Jogendra Narain Singha v. Mohamed Ismail Choudhury 86 Ind. Cas. 1035 : 52 C. 139 : (1925) A.I.R. (C.) 637. On principle it seems to me also that the subsequent conduct of one of the plaintiffs could not affect the competency of the suit as it was instituted by the whole body of the landlords. There is nothing in law to prevent one of the parties to a suit to compromise with his adversary and to agree to a decree so far as they are concerned. But that could not stop the course of the suit as between the contesting parties. I am not aware of any provisions of law which could alter the nature of a suit by subsequent acts of the parties as was done in the present suit. I think, therefore, the learned District Judge was right in his view that the suit was maintainable.
5. As to the second point, I think there is no substance in it. The finding of the learned District Judge is that there was a variation of the jama, after the year 1287. That being so, the presumption under Section 50 of the Bengal Tenancy Act cannot be raised.
6. Tue result is that this appeal fails and is dismissed with costs.