Mohammad Yusuf and others vs Mt. Ramdhan Kuar

Fazl Ali, J.—This is an appeal by the defendants in a suit for rent. The suit related to a holding which consisted of lands of the khatas Nos. 4 and 5 comprising some nakdi and some bhaoli plots. The two khatas were originally situated in tauzi No. 4060 but by reason of a Collectorate partition this tauzi was split up into a number of tauzis and the lands of khatas Nos. 4 and 5 were allotted to all these tauzis. The defendants relying upon this partition contend that the rent suit is not properly framed inasmuch as (1) the suit has been brought in respect of more than one holdings and (2) it has not been proved by the plaintiff to what share of rent she is entitled since the partition. The plaintiff however meets these objections by pointing out that the partition is not binding upon her because she was not made a partly to the partition proceeding.

It appears that the partition proceedings were commenced at the instance of the proprietors of the village but the proprietors of the village sometime in the year 1846 had already executed an istimrari mukarrari lease and it is not denied that the plaintiff holds the mukarrari interest now and that she was not a party to the partition proceedings. It appears to me to be clear that the plaintiff as the rent receiver was a necessary party to the partition proceedings and she is not bound by any order passed by the Collector as to the splitting up of the holdings within the estate in her absence. The second contention put forward on behalf of the appellants is that a separate suit ought to have been instituted for a portion of plot No. 1157 the rent of which appears to have been commuted by the revenue Court either at the time of the partition or shortly after the partition. It appears that the area of which the rent was commuted was only 24 acres and it is also clear that the commutation was made not in respect of the bhaoli rent of the entire holding but only of a small portion of the holding. The view which seems to have been consistently taken in the revenue Courts is that the right to commute extends to whole holding and not to parts of the holding and relying upon this view the Courts below have held that the revenue officer who, commuted the rent of the land in question had no jurisdiction to do so. This view does not seem to me to be unreasonable and in my opinion the plaintiff is not bound by the commutation proceeding.

The only serious question which arises in this appeal relates to the plea of payment which was one of the pleas taken by the defendants in the suit. It may be stated that the present suit was instituted in 1931 for arrears of rent for the years 1334 to 1337 with damages at 25 per cent. It appears that sometime in the year 1336, when the plaintiff was about to institute the suit, the defendants borrowed a sum of Rs. 100 and paid it to the plaintiff. The plaintiff, in the account which is appended to the plaint, has appropriated this sum in part payment of the rent of 1334 and in full payment of the rent of 1333 Fasli and damages upon the arrears at the rate of 25 per cent. It is not disputed that the rent for 1333 was due at the time when the payment in question was made; but the questions which are raised on behalf of the appellants are (1) that the bhaoli rent of the holdings in question could not be charged arbitrarily by the plaintiff at her own figure, but ought to be charged according to the figure fixed by the Courts below in this appeal for the years 1334 to 1336; (2) that the plaintiff could not appropriate any portion of the sum paid by them towards damages upon the dues of 1333 Fasli. The second question does not appear to me to present any difficulty and therefore may be disposed of first. Under S. 55, Ben. Ten. Act, when a tenant makes a payment on account of rent ho may declare the year or the years and the instalment to which he wishes the payment to be credited and the payment shall be credited accordingly; but if he does not make any such declaration, the; payment may be credited to the account of such year and instalment as the landlord thinks fit.

The appellants put forward a definite case in the Courts below that they intended this sum to be credited to the rent of the year 1333 and the years in suit. This case has not been accepted by the Courts below. It follows therefore that the appellants have failed to prove that in making the payment they did make any such declaration as is contemplated in Cl. (1), S. 55. That being so, the landlord was entitled to credit the payment to the account of the years 1333 and 1334 as she has done. The question however still remains whether that account has been correctly made up. It appears from the landlord''s account that she fixed the sum of Rs. 50 odd as the bhaoli rent for the year 1333 Fasli. This amount is not very much in excess of the amount of rent fixed by the Courts below as the rent due for the years in suit and therefore does not appear to me to be unreasonable. In my opinion therefore the landlord was justified in crediting the payment to the account of 1333 and 1334 and the account cannot be said to have been incorrectly made up. In these circumstances I would, dismiss the appeal with costs.

Luby, J.

I agree.