(Bibi) Saleha and Another vs Hulas Mahton and Others

Kulwant Sahay, J.—This is a second appeal on behalf of the plaintiffs in a rent suit. The plaintiffs claimed 7 annas 11 pies 3 krants share in a jagir lakheraj land situated in the town of Gaya by virtue of a purchase under a deed of sale dated the 5th September, 1919, from the pro forma defendants second party. They alleged that the remaining 8 annas and odd share formed the lakheraj jagir interest of the pro forma defendant first party. The principal defendants wore alleged to be the cultivators in respect of 62 acres of land within the jagir interest at a jama of Rs. 4:1-8-0. The suit was framed according to the provisions of Section 148-A of the Bengal Tenancy Act and the plaintiffs claimed the rent which they alleged to be due on account of their share in the entire rent due for the holding. The suit was for arrears of rent for the years 1323 to 1326 Faslis. The pro forma defendants second party who are the vendors of the plaintiffs, filed a written statement admitting the sale and the title of the plaintiffs to claim the arrears of rent and they further stated that the arrears in dispute had not been paid to them and were still due. The principal defendants who are the tenants of the land filed a written statement in which they stated inter alia that there was no relationship of landlord and tenant between the plaintiffs and the pro forma defendant; first party and themselves. They alleged that one Shaikh Jan Muhammad, who is called Khan Muhammad in the judgments of the Courts below was the tenant of the land in dispute and that these defendants wore his under-tenants and that they had regularly paid rent to Khan Muhammad and that they had paid up the rents for the years in suit. They further raised the plea that they did not admit the purchase made by the plaintiffs or their alleged share and they stated that they did not admit that the vendors of the plaintiffs were in possession of the extent of share in the rent claimed land which is alleged to have been sold to the plaintiffs; they further started that the plaintiffs'' names had not been recorded in the Municipality or in the Land Registration Department of Gaya Collectorate, nor were they in possession of the rent claimed lands, and that therefore, the plaintiffs could not maintain the suit for rent.

The learned Munsif before whom the case came on for trial held that the defendants'' allegation that Khan Muhammad was the tenant of the land in dispute and that the principal defendants were his under-tenants had not been made out. He held that it had been satisfactorily proved that there was a relationship of landlord and tenant between the plaintiffs and the tenant defendants and that the suit was maintainable. He, however, was of opinion that the plaintiffs had not proved, that they had ascertained what rent was due to the co-sharer landlord from the tenant-defendants, that u/s 148-A of the Bengal Tenancy Act they were bound to prove that they had made that enquiry from their co-sharer but as the tenant-defendants had stated that they had not paid rent either to the plaintiffs or to their co-sharer for the years in suit and the plaintiffs had paid full Court-fee for the sixteen annas rant claimed, therefore, the plaintiffs were entitled to get a joint decree with the pro forma defendant first party for the sixteen annas of the rent claimed. He held that the decree that he was going to pass would not be a decree u/s 148-A of the Bengal Tenancy Act. He accordingly made a decree in favour of the plaintiffs and pro forma defendant first party for the entire rent of the holding for the years in suit.

Against this decree the tenant-defendants went in appeal before the District Judge and the learned District Judge upheld the finding of the Trial Court as regards the relationship of landlord and tenant between the plaintiffs and the tenant-defendants; he held that it had not been proved that Khan Muhammad was the tenant of the land in dispute and that the tenant-defendants were his under-tenants; and he accordingly held that the principal defendants were raiyats holding under the jagirdars. He then proceeded to investigate the title of the plaintiffs as jagirdars and he found that the plaintiffs had failed to prove that they had 7 annas 11 pies 13 krants share in the jagir interest. He found that the plaintiffs had only 11 pies 19 1/8 krants share in the jagir. He then proceeded to determine for what amount a decree should be passed. The Munsif had ordered that the tenant-defendants do pay to the plaintiffs and the pro forma defendant first party the full amount of the recorded rent but he observed that the plaint itself stated that the plaintiffs had brought the suit believing that their share is the whole of the arrear due and that prayer No. 3 of the plaint was a prayer that decree may be passed for the plaintiffs share; and, in the circumstances the learned Judge was of opinion that a decree for more than this share should not be passed. He accordingly modified the decree of the Munsif and made a decree in favour of the plaintiffs for 11 pies 19 1/8 krants share of the rent and he directed that the decree will be a rent decree u/s 148-A of the Bengal Tenancy Act.

Against this decree the plaintiffs come in second appeal to this Court and the tenant-defendants have filed cross-objections.

On behalf of the appellants it has been contended that having regard to the circumstances of the case it was not open to the tenant-defendants to dispute the share of the plaintiffs as alleged by them in the plaint. Secondly, it has been contended that assuming that it was open to the tenant-defendants to raise this question, the learned District Judge has not considered the entire evidence in the case, and that on a proper consideration of the evidence he ought to have come to the conclusion that the share claimed by the plaintiffs was the share to which they were entitled.

The points taken on behalf of the tenant-defendants in cross-objection are that the findings of the learned District Judge, as regards the relationship of landlord and tenant between the jagirdar and themselves was erroneous; and that the plaintiff-appellants or their vendors not having been recorded in the Batwara or Register D they were not entitled to maintain the present suit.

As regards the first contention raised on behalf of appellants, I am of opinion that it ought to prevail. As I have already stated, the suit was one as provided by Section 143-A of the Bengal Tenancy Act. In this suit the co-sharer landlord of the plaintiffs was impleaded as a defendant and it was stated that the plaintiffs'' share as landlords was 7 annas 11 pies 13 krants and that the remaining 8 annas and odd was owned by the pro forma defendants first party. The pro forma defendants first party did not appear in the suit and raise any objection as regards the share of the plaintiffs. The tenant-defendants in their written statement no doubt alleged that they did not admit the purchase made by the plaintiffs or their alleged share or the share of their vendors; but during the trial in the Munsif''s Court this point does not appear to have been pressed. The only question as regards title that appears to have been raised before the Munsif was as to whether Khan Muhammad was or was not the tenant of the land in suit, and whether the tenant-defendants were or were not his under-tenants. The share of the plaintiffs in the jagir interest as claimed by them does not appear to have been disputed before the Munsif, Before the learned Judge the plaintiffs'' title as jagirdars appears to have been questioned and the learned District Judge seems to be of opinion that the plaintiffs have established their title as jagirdars; but he held that they had failed to prove that their share in the jagir was as claimed by them and that they had only succeeded in proving their share to the extent of 11 pies 19 1/8 krants. In a suit framed according to the provisions of Section 148-A of the Bengal Tenancy Act, where the tenant-defendants do not allege that any co-sharer landlord has been left out from the suit, or that they had paid rent to the co sharer in excess of the share alleged by the plaintiffs to be held by such, co-sharer, I think it is not open to the tenant defendants to question the share of the rent payable to the plaintiffs landlords. The plaintiffs assert that they have a specific share in the presence of all their co-sharer landlords. These co-sharer landlords do not choose to question the share claimed by the plaintiffs. The tenants do not allege that they paid any rent to the co-sharer landlords in excess of the share alleged to be held by such co-sharer landlords. Under such circumstances I think it is no concern of the tenant-defendant to dispute the share alleged to be held by the plaintiffs landlords if he is not made to pay more than the rent payable for the holding. No doubt in an ordinary suit for rent not framed according to the provisions of Section 148-A of the Bengal Tenancy Act where some of the co-sharer landlords bring a suit for their share of the rent and the other co-sharer landlords are not impleaded as parties to the suit, it would be open to the tenant-defendants to call upon the plaintiff to prove that he is entitled to realize the share of the rent as claimed by him. But, I am of opinion that under the circumstances of the present case, where the plaintiffs have made their co-sharer a defendant in the suit and have alleged that the entire sixteen annas of the rent is payable to them and the co-sharer defendant, and the tenant-defendants do not allege to have paid any rent to the co-sharer defendant in excess of the share alleged to belong to him, it was not open to the tenant-defendants to question the share of the plaintiffs. Reliance has been placed on behalf of the tenant-respondent upon the case of Abdul Gafur and Others Vs. Ali Miah, Sub-Registrar, but that case has no application to the facts of the present case. That was a suit in which the plaintiff did not originally bring his co-sharer on the record and claimed a certain amount of rent from the tenant as due to him. The tenant filed a written statement urging, amongst other pleas, that the plaintiff alone was not competent to maintain the suit as he was a fractional landlord. The plaintiff thereupon applied to add his co-sharer as a defendant, and this was done, and the added co-sharer raised the question that the share claimed by the plaintiff was more than he was entitled to and the Courts below proceeded to adjudicate the question as regards the title between the plaintiff and his co-sharer. Their Lordships observed that the effect of the addition of the co-sharer was to transform a simple rent suit into a complex title suit, and that this course had been condemned by the High Courts. Their Lordships, however, proceeded to observe as follows:--"To guard against possible misapprehension, we must state at the outset that it cannot be affirmed as a broad proposition of law that a question of title may not be incidentally investigated in a suit for arrears of rent. Where the tenant-defendant disputes the extent of the title of the plaintiff to the arrears demanded, it is incumbent on the Court to determine the point before the claim is allowed or disallowed." It is upon these observations that the learned Vakil for the respondent lays stress; but it is clear that those observations were made as broad propositions of law, and I agree that in an appropriate case it is open to the tenant to question the title of the plaintiff in a suit for rent. But it is not a general proposition applicable to every case, and, in the present case, I am of opinion that when the co-sharer landlord does not dispute the title of the plaintiff, when the tenant-defendant does not allege that he has paid rent in excess of the share allotted by the plaintiff to his co-sharer landlord, and where it is nobody''s case that there is any other co-sharer landlord who has not been brought on the record, it is not open to the tenant-defendant to question the share of the rent claimed by the plaintiff.

In this view of the case it is not necessary to consider the second point taken by the learned Counsel for the appellants. But I may observe that the decision of the learned District Judge on this point does not appear to be satisfactory. The learned Counsel for the appellants has placed before me portions of the documentary evidence which have not been considered at all by the learned Judge and also the documents which have been referred to by the learned Judge and they do certainly go to show that the plaintiffs have more than 11 pies 19 1/8 krants share as held by the learned Judge. However, having regard to the fact that in my opinion the appellants are entitled to succeed on the first point, it is not necessary to discuss the second point, in detail. If the appellant had failed on the first point then it would have been necessary to make a remand to the lower Court for re-hearing of the appeal upon the entire evidence in the case.

As regards the cross-objections of the respondents, the first point taken by them raises a question of fact which has been determined by both the Courts below upon a consideration of the evidence, and it is not open to the respondents to raise this question in second appeal.

As regards the second point, I find that this point was not taken either in the Trial Court or before the District Judge. No doubt the plea of non-maintainability of the suit on account non-registration of the names of the plaintiffs in the Land Registration Department of the Collectorate was taken in the written statement; but there is no mention of this point in the decision of either of the Courts below. The land is a lakheraj jagir land within the Municipal limits of the town of Gaya, and in order to raise the bar u/s 78 of the Land Registration Act (VII of 1876 B.C.) it would be necessary to enquire whether the jagir interest is such as is required by the Land Registration Act to be registered in the Collectorate Register. As was pointed out by the Calcutta High Court in Pitamber Singh v. Sukrim (1908) 35 Cal. 747 some revenue free lands in the Districts of Bihar were released after proceedings held under Reg. II of 1819; these were called Estates or Revenue Free Estates, and they were entered in the Collectorate in the Register of Revenue Free Estates but all revenue free estates were not registered and that, therefore, it was not true that every proprietor of revenue free estate is bound to have his name registered. The jagir interest in the present case is a revenue free estate of the nature described in that case and as was observed by the learned Judges in that case the disqualification in bringing suits for rent is one which attaches only to revenue free estates already entered in the General Register if the proprietor or manager or mortgagee fails to register his name. Here it has not been shown that the jagir interest in suit was such as had already been entered in the General Register of the Collectorate. The point raises a question of fact and as it was not raised in the Court below, I think it is not open to the tenant-defendant to raise this question in second appeal.

The result is that the decree of the learned District Judge is modified and a decree will be made in favour of the plaintiffs for 7 annas 11 pies 13 krants share of the rent. The decree will be a rent decree u/s 148-A as directed by the learned District Judge. The appellants are entitled to the costs of this appeal and to proportionate costs according to the amount decreed in both the Courts below. The order for damages at 25 per cent, will stand. The cross-objection is disallowed but without costs.