Behari Lal and Others vs Shiam Lal

Karamat Husain, J.—One Sagan Lal on 9th May 1910 gave a zar-i-peshgi lease of an occupancy holding to Sham Lal, Kallu and Tika from 1306 to 1314F. There was a covenant in the lease that the lessee would pay the rent of the holding to the zamindar. The zamindar brought an action against Sagan Lal for enhancement of rent from Rs. 335 to Rs. 650 to taka effect from the year 1314F. Sham Lal applied to be made a party to the enhancement suit but his application was rejected. The zamindar obtained a decree against Sagan Lal, the original occupancy tenant. He, on the basis of that decree, brought a suit against Sham Lal, Kallu and Tika for arrears of rent for the year 1314F. at the enhanced rate. I am concerned here with Sham Lal only. His defence was that he was not bound to pay the rent at the enhanced rate. The Court of first instance decreed the plaintiff''s claim. On appeal the decree of the first Court was modified and a decree at the lower rate of rent was granted. The plaintiff comes here in second appeal, and it is contended by the learned Advocate that the mortgagee of a lease-hold takes a mortgage at the risk of the rent being enhanced, and that he is liable to pay the rent at the enhanced rate. In support of this contention, the learned Advocate relies on certain remarks to be found in Vithal Narayan Kalgutkar v. His Highness Shriram Savant 29 B. 397 : 7 Bom. L.R. 313.

In the case before me the decree for enhancement of rent was obtained behind the back of Sham Lal, and his application to be made a party was rejected. That decree, therefore, is not binding on Sham Lal and he is not liable to pay the enhanced rent. The appeal, therefore, fails and is dismissed with costs including in this Court fees on the higher scale.