Mohammad Yunus vs Bishunath Singh

Beevor, J.—The plaintiffs-appellants sued for declaration that certain reduction of rent made by Revenue Officer was made without jurisdiction. The plaintiffs are husband and wife. The husband is the proprietor of 10 annas 8 pies milhiat, while his wife is the usufructuary mortgagee of the remaining milhiat. It has been found that the wife (plaintiff 2) was not made a party to the rent reduction proceedings. It was also urged that the finding of the lower Court that the defendants had acquired occupancy right was incorrect in law, and further that the order of the Revenue Court was without jurisdiction because an amendment of the application was allowed by the Revenue Officer interfering in the matter. Dealing with the last point first, I find that there is nothing to show what the amendment was, if any, and I must, therefore, hold that this point fails.

As regards the second point, I am not satisfied that the appellants are entitled to relief on this basis. Certainly, it seems to have been found by the lower Courts that the settlement with the defendants was made by one Mt. Abhilakhi Kuer, whose interest in the milhiat was only 14 annas 6 pies. But the evidence of the defendants was that the other landlords had recognized the settlement, and although a Full Bench of this Court decided in Bibi Kaniz Fatma Vs. Sk. Hossainuddin Ahmad and Others, that a person who is inducted upon the land belonging to a number of cosharers landlords by one cosharer without the consent or authority express or implied of the other cosharers is not a raiyat, it was recognized by that very decision that in some instances Settlement made by one cosharer may be treated as having been made with the authority of all. In the present case, the plaintiffs'' case was that the defendants never got possession at all until after 1929. The finding was that they got possession at least as far back as 1923, and I do not think that it was open to the plaintiffs to change their case knowing that the settlement was invalid, because it was made only by a co-sharer landlord.

It seems to me, however, that the plaintiffs'' appeal must succeed on the first ground. It was laid down in Nand Kishore Lal Vs. Basdeo Singh and Others, that an order by the Revenue Officer for reduction of rent passed without giving notice to the decree-holder, who had obtained a decree for rent, was without jurisdiction, and this decision was based on a previous decision of the Calcutta High Court in Gora Chand Haldar and Another Vs. Rakhal Chandra Gope and Others, which had the general application to that case.

On behalf of the defendants-respondents, I have been referred to the decision reported in Dwarka Nath Sen Vs. Dhanoo Gope and Others, . That was a case in which a notice was issued, and actually served on some persons as being the agent of the landlord, though unfortunately it seems to have been served on the wrong person.

In the present case, it does not appear that any notice was ever issued or could have been issued to any one by the Revenue Officer as to a person being the agent of plaintiff 2. In these circumstances, I must hold that the Revenue Officer''s order was without jurisdiction, and the plaintiffs are entitled to a declaration to that effect.

In view, however, that no explanation is forthcoming why plaintiff 1 failed to take this objection in the Revenue Court, there would be no order for costs in this suit.