Deonandan Pandey vs Rampirita Rai

Mohamad Noor, J.—These two second appeals arise out of two suits instituted by the same plaintiff against two different defendants for realization of what is called channel rent. Under the Bengal Irrigation Act the canal water is brought in Government channels up to a certain point and then it is distributed among the cultivators through private channels owned by private individuals who are described in the Act as the owners of the channels. u/s 59 of the Act the owner of a village channel is bound to construct and maintain the village channels for irrigation and drainage and to keep them and other necessary constructions in that connexion in an efficient condition and to allow their use on such terms as may be declared equitable by the Canal Officer. He is entitled to get supply of water at the rate fixed and is also entitled to receive rent for the use of the village channel by other persons as the Canal Officer may award. Section 47 of the Act enjoins upon the Canal Officer to keep a register of all village channels whether existing or constructed under the Act and to register the names of the owners of every private channel.

The plaintiff''s case is that he is the registered owner of channels Nos. 189 and 550 of village Raimalpur alias Sikrahata and that as such he sued the defendants of the two suits who used them for the recovery of the channel rent according to the rate fixed by the Canal Officer. The defence material for the purposes of these appeals was that the plaintiff was not the only owner of the channels in question and that some other persons, namely Ramdip Pandey and others, were also co-owners of the two channels and that the plaintiff''s share of rent was only one-third and the remaining two thirds was payable to the aforesaid persons. There was a plea of payment also which was disallowed by the trial Court and we are not concerned with it in these appeals.

In order to meet the main defence of the defendants the plaintiff urged that as he-alone was registered as the owner of the channels in question in the Canal Office, he-alone was entitled to realize the rent and. that the defendants were precluded from asserting that a part of the channel rent, was due to some one else and that if others had any interest in the channels they could realize their dues from the plaintiff. The plaintiff also denied that Ramdip Pandey and others had any interest in his channels. The learned Munsif decreed the suit. He* examined the scheme of the Bengal Irrigation Act and came to the conclusion that the plaintiff alone was entitled to realize the channel rent. He also found that the defendants failed to prove that any other-person was the cosharer of the plaintiff in these channels. On appeal by the defendants,, the learned Subordinate Judge has modified the decree of the trial Court. He has held that Ramdip Panday and others were owners of the channels to the extent of two third and that the plaintiff was not entitled to realise the entire rent. He therefore decreed the plaintiff''s suit to the extent of one-third of the claim only. The plaintiff has preferred these two second appeals.

In my opinion the view taken by the-learned Munsif was correct. The right to realise rent for the use of the channels by the villagers for irrigation purposes is provided for in the Act and the rate at which, the rent is to be realized is to be fixed and awarded by the Canal Department. Section 59 of the Act says that "every owner of a village channel shall be bound" etc. etc. and shall be entitled "(e) to receive such rent, for the use of the village channel by other persons as the Canal Officer may award him." It is therefore clear that the right to realise the rent is dependent upon the award of the Canal Officer and in this case the khatiwanis, Exs. 1 to 1-B, are in favour of the plaintiff only and they authorise only the plaintiff to realise the rent at the rate of Re. 0-2-9 per bigha from 1929-30 to 1938-39.

Section 63 of the Act authorizes the representative of a deceased owner of a channel to apply for registration of his name. Then it provides that if such an application for registry be not made within six weeks from the death of the owner the remaining registered owners of the village channel, if any, shall be deemed to be the owners of the entire interest in the village channel until some other person shall have established his claim to be registered as owner in place of the deceased. This clearly shows that in case no representative of a deceased owner is registered as owner of the channel in the Canal Department, the remaining owners alone shall be deemed to be the owners of the channel and the representative of a deceased owner will not be entitled to realise the rent though there is no question that he is also a co-owner of the channel. The Section further provides that if a sole registered owner dies and the name of his representative has not been registered the Canal Officer shall be deemed to be his representative for the purposes of this part of the Act and shall exercise all rights and be ''bound by all liabilities which attached to the deceased in respect of his ownership of the village channel until some person shall have established his right to be registered as owner thereof in place of the deceased, and then it provides what the Canal Officer will do with regard to the money which ''he receives and spends in exercise of the right which devolves upon him on the death of the sole registered owner of the channel.

The scheme of the Act therefore seems to be that the Canal Department will deal with those owners only whose names are registered in their books, and they will issue authority for the realisation of the rent in their favour only, the obvious reason being that those who use the village channels may definitely know to whom the rent is payable and how much is payable. The Canal Department will also be in a position to enforce the liability of the owner of the channel as provided in Section 59 of the Act against those owners only who are registered Reading Sections 47,59 and 63, taken together, I am clearly of opinion |that no one else except a registered owner who has been awarded right to realize rent can sue for rent and when such a person has brought a suit the defendants cannot plead that the rent was due to some one else also. This plea, if allowed, will lead to serious anomalies and complications which will'' make the working of the Act impossible and the realization of rent will be difficult. Issues of title will have to be decided in A simple suit and the carrying out of the liability of maintenance of the channel will become difficult to enforce.

Mr. P.P. Varma, appearing on behalf of the respondents, relied upon the definition of ''owner'' in the Irrigation Act. According to it

owner includes every person having a joint interest in the ownership of the thing specified and all rights and obligations which attach to an owner under the provisions of, the Act shall attach jointly and severally to every person having such joint interest in the ownership.

The learned advocate contended that all those who have a joint interest in the channel come within the term ''owner'' as mentioned in Section 59 of the Act. But we are not concerned with the question whether anyone else other than the plaintiff is also a joint owner of the channel with him. The question is whether anyone else even if an owner but not registered can realize rent directly from the cultivators. The very definition of owner shows that the right of joint owners can be exercised by them jointly or severally. So any one of them can exercise the right, and as I have shown only those can sue who have been registered. This will not be adverse to the interest of those who have not been registered. The registered owner will be acting on behalf of them all.

Then the learned Munsif has, as I have said, held that there was no evidence to prove that any one else other than the plaintiff had a share in the channels. The defendants had filed a copy of a compromise petition to prove that the channels in question are owned to the extent of two-thirds by Ramdip Pandey and others. The learned Munsif refused to act upon it on the ground that there was no decree to show that the compromise petition was accepted and a decree was passed according to it. The learned Subordinate Judge has, in my opinion, wrongly acted upon it. He has wrongly treated it to be a decree which it is not. It is merely a copy of the petition and the learned Munsif was perfectly right in not acting upon it. In this respect also the judgment of the learned Subordinate Judge is erroneous. But in my opinion the question need not be gone into in this case, as for the purposes of the present suit it is enough to hold that the plaintiff is admittedly the only registered owner of the channels and as the Canal Department has authorized him to realize the rent, he alone can do so.

The result is that I set aside the decree of the lower Appellate Court and restore that of the learned Munsif. The appellant will be entitled to his costs in this Court as well as in the Court of Appeal below.