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Judgment
Manohar Lall, J.—These four appeals are by the plaintiffs against a decision of the learned District Judge of Gaya, dated 28th August 1936, by which he has dismissed with costs the suits of the plaintiffs instituted under the following circumstances.
Briefly stated the facts which are somewhat complicated are these. It appears that the plaintiffs are the ten annas landlords of village Furan in which defendant 1, Umeshwari Kuer, holds the remaining six annas interest. In or about the year 1887, the plaintiffs obtained a thica lease of the share of the respondent for a certain number of years, and this lease, we are informed, was being renewed from time to time, until on 18th August 1916, the plaintiffs again took a lease of the share of Umeshwari Kuer, which was to last till 1332 Fasli. On the expiry of this lease, Umeshwari Kuer entered into sir possession. In the lease, which I have just mentioned, there was a restriction imposed on the thiccadars in the following words:
That the lessees shall not without the consent of the lessor, such consent not to be withheld in a proper case, either directly or indirectly permit any new right or tenures, which are not in existence, to be created against the lessor and if they shall create any new right or tenures the same shall be invalid and of no effect against the lessor.
One of the contentions raised in this case, indeed the most serious contention, was that in view of the terms which I have just quoted, the appellants were not justified in effecting certain amalgamations and subdivisions in the holdings, of which greater details are just going to be stated. The evidence discloses that there were three khatas, viz. Nos. 113, 42 and 87, in. eluded in the thica lease of the plaintiffs and that during the continuance of the lease these three khatas were amalgamated into one holding, although the total jama and the total area of the lands was not altered in any way whatsoever. On the expiry of the thica lease, the plaintiffs instituted a rent suit on 15th February 1932, claiming arrears of rental for 1337, 1338 and a portion of 1339 Fasli. This, it may be noticed, was after about six years from the expiry of the thica lease in 1332. In this suit the respondent was impleaded as the cosharer landlord under the provisions of Section 148-A, Ben. Ten. Act, which were duly observed, and a decree was obtained on 30th June 1932.
On 21st December 1932, this decree was put into execution and resulted in a sale in favour of the appellants who obtained the delivery of possession on 5th November 1933. As I have already stated, this decree purported to be a decree under the provisions of Section 148-A, Ben. Ten. Act, and covered all the lands of the three khatas which were amalgamated into one with a consolidated jama.
On 16th September 1932, Umeshwari Kuer ignored these amalgamations and she lodged in her turn three separate suits, bearing Nos. 1193, 1194 and 1197, for the same three khatas, i.e. Nos. 113, 42 and 87, for the period 1336 to 1339 Fasli. It is not disputed that the plaintiff herself was made a party to these later rent suits, in one of which all the three members, who were the tenants of the holding, were made parties, and in the other two only, one member was made a party, but apparently representing the entire holding.
On 13th February 1933 these three rent suits were in turn decreed ex parte apparently under the provisions of Section 148-A, Ben. Ten. Act. The appellant who had been made a party defendant as a cosharer landlord, does not appear to have raised any objection. These three suits having been thus decreed were proceeded with in execution, and in 1934, Umeshwari Kuer started three execution cases, viz. Nos. 1359, 1366 and 1372 of the year 1934.
In these execution cases the appellant preferred objections on 15th November 1934, under the provisions of Order 21, Rule 58, Civil P.C. She treated the decrees under execution as mere decrees for payment of money. These applications were dismissed on 17th November 1934 on the ground that they were filed late, but the Court did not go into the merits of the objections at all. Being aggrieved by these orders, the plaintiffs then instituted three suits, viz. Nos. 89, 93 and 92 of 1934 before the Munsif of Jehanabad in which she claimed the reliefs which were the subject of the two issues stated by the learned Munsif as follows:
Was the sale of the land in suit in favour of defendant 1 in execution of her decree for rent against the tenant defendants in effect a Bale under a money decree? Was the sale in plaintiffs'' favour of the land in suit a rent sale?
I am leaving oat the other issues which were issues as regards the maintainability of the suits and as to what reliefs the plaintiffs were entitled to. Before the learned Munsif, the respondent raised the defenoe that the suits were barred because the remedy of the plaintiffs was to have moved the executing Court under the provisions of Section 47, Civil P.C. A further defence was on the merits that the terms of the thicca lease of the year 1916 specifically forbade the thiccadar from creating new rights and that the amalgamation and the subdivision of the holdings did in fact result in creating new rights in favour of the tenants and against the landlord.
The learned Munsif in a considered judgment came to the conclusion that the plaintiffs during their thicca period had the right) to subdivide and amalgamate the holdings and these were therefore binding on the defendant Umeshwari Kuer. He also held that the decrees obtained by the plaintiffs were rent decrees and those obtained by Umeshwari Kuer were money decrees. He however dismissed the suits on the ground that inasmuch as the plain, tiffs were parties to the suits, the decrees in which were under execution, their remedy lay under the provisions of Section 47, Civil P.C. and not under Order 21, Rule 58. He accordingly held that under the provisions of Section 47 the plaintiffs were not entitled to maintain the suits.
From this decision a number of appeals were preferred to the learned District Judge. Three of the appeals were against the order dismissing the suits and three were miscellaneous appeals against the orders dismissing the applications under Order 21, Rule 58, treating them as orders u/s 47, Civil P.C. The learned District Judge dealt with all cases by one judgment in which he has disagreed with the finding of the learned Munsif, and relying upon the the observations of Chapman, J. in Mahamad Nazirul Hussain v. Chuni Kamti A.I.R.1917 Pat 474 and of Macpherson, J. in Nathuni Sahu Bhagwan Gir A.I.R.1928 Pat 436 has held that the amalgamation and the subdivision of the lands in the present case were not binding upon the respondent, with the result that the decrees obtained by the plaintiffs in the year 1932, although apparently under the provisions of Section 148-A, Bengal Tenancy Act, could not be treated as rent decrees but only money decrees. The learned District Judge also held that the applications, if regarded as under Order 21, Rule 58, Civil P.C., would result in the view that no appeal would lie against the orders of the learned Munsif. On the other hand, he held that the learned Munsif would have been justified in treating these present suits as proceedings u/s 47, Civil P.C., and he proceeded to treat them as such himself. From this decision of the learned District Judge, dated 28th August 1936, the present appeals are brought to this Court.
The first question and indeed the critical question which arises for decision is, whether the terms of the thica which I have quoted already, forbade the thiccadar from amalgamating and subdividing the holdings with the result that they are not binding upon the respondents. On behalf of the respondents, reliance is placed upon the observations of Chapman, J. in Mahamad Nazirul Hussain v. Chuni Kamti AIR 1917 Pat 474 which run as follows:
I agree. As a statement of what I understand the lair to be I would like to quote from an old annotated edition of Act 10 of 1859:
Unless the authority of the thiccadar is restricted expressly by a contract or by the act of the zamindar or by the custom of the country he Is authorized in good faith to sanction the subdivision of a holding or the consolidation of two holdings into one and the zamindar cannot subsequently refuse to acknowledge the transaction.
Now these observations were made by the learned Judge while agreeing with the leading judgment of Roe, J. in which there is nothing to show that this question was at all in issue in that case, as is clear from the following passage in the judgment of Roe, J.:
Under the Proviso to Rule 88, Bengal Tenancy Act, there can be no doubt that the thiccadar''s papers would amount to an express consent by him to the alteration of the areas of the holdings and the apportionment of rent upon the new holdings. There has been a finding of fact by the lower Appellate Court that the thiccadar in this case was not in collusion with the tenants, a definite finding of fact that the net result of the thiccadars recognition of these transfers was an enhancement of rent of the estate as a whole. In these circumstances there could be no reason for refusing to hold the landlord bound by the action of the thiccadar.
The only question was whether the subdivision or amalgamation of the holdings was in good faith, and the learned Judge came to the conclusion that the action of the thiccadar in altering the area of the holding and apportionment of rent of the new holdings was absolutely bona fide.
In the other case Nathuni Sahu Bhagwan Gir A.I.R.1928 Pat 436 which is also a decision of a Division Bench of this Court, Kulwant Sahay, J. expressly holds that a recognition by a thiccadar to the amalgamation of separate holdings into one is binding upon the landlord when the thiccadar has acted in good faith and in the ordinary course of business and it is not necessary that it should also have been for the benefit of the estate. Macpherson, J. in that case added the following observation: "I desire to express my concurrence with Chapman, J. in Mahamad Nazirul Hussain v. Chuni Kamti A.I.R.1917 Pat 474." This observation again was not at all necessary or required by the facts decided in that case, where the only facts involved, and upon which the decision depended, were whether the alteration of the area by the thiccadar or the apportionment of the rent was in good faith or not.
Therefore these two authorities are mere observations of a single Judge in each ease and are not authorities for the proposition that such an amalgamation, where done in good faith, would not be binding upon the zamindar when the lessee gives up possession to the lessor. In the present case there are clear findings to the effect that the amalgamations and subdivisions were made in good faith and that the landlord, that is the respondent, has not been prejudiced thereby in the least. The trial Court, as already pointed out, came to the clear finding upon the point and the learned District Judge seems to have accepted that finding, but he proceeded to ignore that finding upon his view of the law based upon the observations in the two cases of this Court, which I have just dealt with. In my opinion the learned District Judge erred in law in so doing and I hold that the amalgamation and the subdivision in this case are binding upon the zamindar, i.e. defendant 1, because they have been held to be in good faith.
Mr. Shivanandan Ray, appearing on behalf of the respondents, very strenuously argued that the amalgamations and the subdivisions in fact created new rights and therefore, even though made in good faith, they should not be held to be binding upon the respondent. He argued that the question is not whether these amalgamations and subdivisions are or are not in good faith, but whether they should be held to be binding upon the zamindar after the expiry of the thica as being against the express prohibition of the document of lease.
In my opinion, the question before us is whether the particular amalgamation and subdivision with which we are dealing are bona fide. The terms of the lease of the year 1916 do not in effect prohibit any amalgamation and subdivision made in good faith in the ordinary course of business no new rights are created by these acts of the thiccadar. Mr. Shivanandan Bay then argued that there was no evidence whatsoever whether Umeshwari Kuer knew of these amalgamations or subdivisions when she instituted the subsequent rent suits, in execution of the decrees whereof the objections were raised by the present plaintiffs which are being correctly treated as u/s 47, Civil P.C. It is enough to say in answer to this contention that the knowledge of Umeshwari Kuer during the period of the lease was immaterial, and that her knowledge or lack of knowledge after the lease was equally immaterial. If the fact is that the amalgamations and subdivisions have been effected and are binding upon Umeshwari Kuer (as I have already held) then the question whether she knew of such amalgamations or subdivisions is wholly irrelevant. Mr. Shivanandan Ray then argued that the decision in the later rent suits in which the plaintiff was a party and which were instituted by the respondent on 16th September 1932, should be held to be res judicata, because it was decided there in the presence of the appellant that Umeshwari Kuer was being granted a decree for rent against the tenants for the old holdings and inasmuch as the appellant did not raise any objection in that suit she should be debarred from raising the question now.
Now upon the findings of fact which I have already arrived at, it is clear that the decree obtained by the plaintiffs in 1932 was a rent decree and therefore any decree which was obtained later on by the respondent, even though it may be in the presence of the appellant, would have the effect of being a money decree. No issue was raised or could be raised in the rent suit where the only issue was whether a certain amount of rent was due from the tenant, and the question whether the decree was a money decree was not and could not be decided in that suit.
The last contention of Mr. Shivanandan Ray was that the suits of the plaintiffs are barred, because they had not preferred any appeal against the order of the learned Munsif, by which he dismissed the applications which the plaintiffs purported to make under the provisions of Order 21, Rule 58, on 17th November 1934. He argued that even if those applications be treated as u/s 47 of the Coda, no appeal was preferred against the orders passed and therefore the present plaints even if they were treated as applications under the provisions of Section 47 are not maintainable. In my opinion this contention is not correct. The previous applications were dismissed not on the merits but simply as having been filed late and as being under Order 21, Rule 58, Civil P.C.
Therefore there was no bar in law to the plaintiffs filing correct applications u/s 47 of the Code. The rule of constructive res judicata does not apply to this state of facts. The plaints in the present suits are correctly treated by the learned District Judge as u/s 47 and there is no defect in the maintainability of these appeals before us.
The result is that the appeals of the plaintiffs must be allowed so far as they concern the amalgamated holdings of khatas Nos. 113, 42 and 87. It now remains to deal with the case of the subdivision of the holdings. It appears that there were two khatas Nos. 83 and 68 in these villages. During the period of the lease, the thiccadar amalgamated the lands and the jamas of khatas Nos. 83 and 68 and subdivided them into four either on the representation of the tenants or as a matter of convenience, but this was done bona fide and not to the prejudice of anybody. After these subdivisions four rent suits were instituted against the tenants on the jamas which were settled after the subdivision. These suits were decreed in due course, and although the respondent was made a party defendant, she did not prefer any objections. Executions were started in 1932, 1933 and 1934, and after the sales were held in three cases in favour of the appellant, and in the fourth case in favour of a third party, the appellants obtained delivery of possession on 5th November 1933, 19th November 1933 and 17th June 1935. Umeshwari Kuer, the respondent, as before, ignored these subdivisions, and she brought a single rent, suit for the two khatas 83 and 68. Having obtained a decree she proceeded to sell the lands, and after the objection filed by the appellant had been dismissed as before on the same ground, a Title Suit, No. 91 of 1934, was raised, the plaint in which suit has been treated and correctly treated by the learned Judge as an objection u/s 47. For the reasons given above at length I hold that the objection of the appellant u/s 47 should prevail in this case also.
In the result, the appeal must be allowed with regard to the subdivided holding, also.
All these appeals must therefore be allowed. It is declared that the respondent had no right to sell the holdings which were amalgamated or subdivided and which were purchased by the appellants, and that the sale of the lands in these suits in favour of the first defendant-respondent in execution of her decree for rent against the tenant-defendants was in effect a sale under money decrees. As the confusion has arisen from the conduct of the plaintiffs in not proceeding in a proper manner with the objections in the Execution Department and instituting, regular suits later on thus prolonging the litigation unnecessarily, each party musk bear his own costs throughout.
Chatterji, J.
I agree.