Syama Charan Mandal vs Saim Mollah and others

Maclean, C.J.—We think that; this case must be remanded to the Subordinate Judge. The Subordinate Judge found, as a fact, that the Defendant had established his plea of abatement of rent, upon that, the appellant says that that abatement of rent was granted by one of the co-sharers, and that it is not binding on the other co-sharers. I think that in point of law that is so, and consequently the abatement would not be good except as against those co-sharers who consented to it. I think, therefore, that on this point the learned Subordinate Judge miscarried. It, may very well be, however, that if the Defendant can make out that 13 bighas out of the quantity embraced in the kabuliat have been taken away subsequently he may be entitled to some abatement of rent in respect of that as distinguished from abatement of rent under this pattah, which was granted by one of the co-sharers and not by all. It is possible that the Defendant may be entitled to some relief in that respect if he can make out, as the Subordinate Judge appears to have thought he had made out, that the 13 bighas have been taken away subsequent in date to the kabuliat.

The whole case, therefore, must be remanded with an expression of our opinion that the mere abatement of rent by one co-sharer would not bind the other co sharers, not, as pointed out by my learned brother, bind the present Plaintiff who has bought the whole property. The costs will be dealt with by the Subordinate Judge on the trial on remand.

Banerjee, J.

I concur.