Madhusudan Mahanty and others vs Norottam Barik and others

Dhavle, J.—The findings on remand really conclude this appeal. The suit was brought by six members of joint family of which defendant 4 was the senior member, against the landlords, 1 to 3, in order to get rid of a compromise arrived at in a Suit No. 76 of 1928, brought by the latter against defendant 4 for a declaration that 5. 28 acres of land were, not the occupancy holding of defendant 4 as shown in the last Record of Eights but the proprietor''s private land. The lower Court has now found that there was a bona fide dispute between the parties to the suit of ]928 regarding the character of the land that there was a bona fide settlement of this dispute embodied in the compromise, and that the compromise having been entered into by defendant 4 as the oldest member and manager of that family, without any relinquishment of an admittedly existing occupancy right, the other members of the family are bound by it The learned Advocate for the plaintiff-respondents has urged that a consent decree stands on no higher footing than a contract between the parties and can therefore, not take away any right already accrued to the family. He has referred to the fact that though in the two previous Record of Eights the land was shown as proprietor''s private land, it is recorded as occupancy land in the latest Record of Eights and that under S. 117 (3) Orissa Tenancy Act the latest Record of Rights is to prevail. He has also referred to the decision of a Special Bench of this Court in Tangaroo Suikue v. Chathu Bhar (1929) Pat 460 = 118 I C 316 (F B) regarding the accrual of occupancy rights in proprietor''s private land and has contended that the family clearly had occupancy rights in the land and cannot be deprived of those rights by reason of the contract between the landlord and defendant 4 in view of the fact that S. 232 Orissa Tenancy Act (like S. 178 Bengal Tenancy Act) provides that nothing in any contract between the landlord and a tenant shall take away an occupancy right in existence at the date of the contract. I am entirely unable to accept this contention for the reasons given in C.G. Macdonald v. Teknarain Rai (1925) Pat 113 = 75 I C 997 a case to which I referred when. I first heard this appeal. S. 232 will invalidate contracts between landlord and tenant if they take away an occupancy right in existence at the date of the contract but it has no application to cases where there is a dispute between the parties regarding the existence of the occupancy right itself and the compromise settles the dispute either by affirming or by denying the occupancy right as the case may be. That was clearly laid down in C.G. Macdonald v. Teknarain Rai (1925) Pat 113 = 75 I C 997 and in view of the findings regarding the existence of a bona fide dispute between the parties, is sufficient to make the contention before me untenable.

The learned Advocate for the respondents has also urged that in any event the compromise ought not to bind the minors. He points out from the rent suit of 1925 that the landlords were aware of the existence of the minor members of the joint family, and relies on the consideration that if in the suit of 1928 the minors had been impleaded as defendants, there would have had to be a guardian ad litem who could not have entered into any compromise except with the leave of the Court, while by imp leading defendant 4 alone, the landlords were able to obtain a compromise without the leave of the Court. But the suit of 1928 was brought in order to correct what the landlords regarded as a mistake in the Record of Rights; and Record of Eights only showed defendant 4 as the tenant. It has been repeatedly held that in a suit between the landlord and tenant it is sufficient for the landlord to proceed against the recorded tenant only. It is also unquestionable that the karta or managing member of a joint Hindu family may be proceeded against even without expressly describing him as the karta so as to bind the entire family. The learned Advocate has not been able to refer to any principle or cite any authority where it has been held that a compromise obtained by a landlord from his recorded tenant will not bind such minors, as represented by the tenant, without the leave of the Court. It cannot therefore be said that the landlords were bound to impaled the minors as well as defendant 4 in the suit of 1928 in order to bind them. If the plaintiff had succeeded in showing that the recorded tenant had not acted in the interest of the joint family and had not settled the dispute with the landlords by a bona fide compromise, it might have been another matter. As it is, with the findings on remand before me, I am bound to hold that this appeal must be allowed with costs. Order accordingly.