1. These are two connected second appeals between the same parties arising out of two suits for arrears of rent brought by Jawahar Singh, plaintiff, respondent, against Kundan Singh and others, defendants-appellants in the Court of the Assistant Collector, First Class, Meerut. The relevant facts are as follows : Two persons named Mahabir Singh and Gajraj Singh owned an area of 22 bighas 8 biswas and 10 biswansis of land which they sold to Jawahar Singh, the plaintiff, by a sale deed dated 22nd December 1908. The land sold lay partly in Mahal Dharam Singh and partly in Mahal Jawahar Singh. After having executed the sale deed the vendors appear to have leased out the land to the defendants on a rental of Rs. 472 per year. The vendee obtained actual possession of the land sold to him except for an area of 6 bighas 5 biswas in Mahal Dharam Singh and an area of 7 bighas 13 biswas in Mahal Jawahar Singh. In respect of these two areas he brought two suits for ejectment against the defendants under Section 44, Agra Tenancy Act. The matter was fought up to the Board of Revenue and it was held that the defendants were not trespassers but were statutory tenants. The suits for their ejectment were dismissed. After the dismissal of the suits for ejectment the plaintiff filed two suits for arrears of rent, alleging on the basis of the previous decision that the defendants were statutory tenants liable to pay rent at the rate of Rs. 7 per kachcha bigha equal to Rs. 22 per pakka bigha. This is the rate at which the rent of Rs. 472 per year on an area of 22 bighas 8 biswas and 10 biswansis works out. The defendants pleaded inter alia that they were not tenants holding land at the rate of Rs. 7 a kaehcha bigha and that the rent of Rs. 472 per year was fixed on an area of 22 bighas odd out of which area the most valuable land had been taken possession of by the plaintiff and the land left with the defendants was not worth more than Rs. 3 per bigha. The trial Court of the Assistant Collector dismissed the two suits in respect of the two mahals on the ground that the entire land of 22 bighas having been taken under one lease, it consti. tuted one holding and two separate suits for portions of one holding did not lie. He left the other matters in dispute between the parties undecided. In appeal the learned Additional District Judge held that two separate suits for the land in two different mahals were maintainable, as the areas in two different mahals constituted two different holdings. Accordingly he set aside the decision of the Assistant Collector and after himself determining the rate of rent decreed the two suits.
2. In second appeal before me, it is contended that the learned District Judge had no power to fix the rent. It is argued that rent could have been fixed only under Section 45, Agra Tenancy Act, but the suits under appeal were not filed under that Section of the Act. They were filed under Section 132 of the Act and as they were valued at over Rs. 200 each, the appeal lay instead of the Collector to the District Judge : vide Schedule 4, Group A, Serial No. 4, Agra Tenancy Act. Learned Counsel has also argued that jurisdiction as regards suits for determination of rent under Section 45, Agra Tenancy Act, is determined by the provisions of Group B, Serial No. 3. Such suits are triable by an Assistant Collector of the First Class and an appeal lies to the Commissioner. The suits under appeal were undoubtedly not filed as suits under Section 45. Consequently the Court dealing with these suits was not competent to fix the rent. Learned Counsel refers to a decision of the Board of Revenue in Paitm Ram v. Rahim (1937) R.D. 201 in which it was held that:
Ordinarily a landlord, who wishes to treat as a tenant a person who has occupied his land without his permission, must, if the two cannot agree upon the rent sued for, have the rent fixed under Section 45, Agra Tenancy Act. He oannot miss out this step and sue straightway for arrears of rent. Where however both parties accept the rent stated in the plaint to be correct, it is not necessary to insist that the plaintiff should take proceedings under Section 45 before he can obtain a decree for arrears of rent.
3. With this view of the law I agree. In my opinion the two suits under appeal were quite misconceived. It cannot be denied that the rent of Rs. 7 per bigha was not agreed upon between the parties to this litigation. It had not been agreed upon even between the defendants and the vendors who leased out the land. The fact that the entire area of 22 bighas odd was let out on a rental of Rs. 472 by the vendors could not be considered to fix the rate of rent for the area now in possession of the defendants at the rate which is given by dividing the entire rental originally fixed upon by the total area of the land originally taken. In fact the learned Additional Judge himself remarked in his judgment that the observation of the Rent Court that the defendants were tenants on a rent of Rs. 7 per kachcha bigha must be considered to be in the nature of an obiter dictum. A contention to this effect was raised on behalf of the defendants and was accepted by the learned Additional Judge. After accepting that contention he went on to say that it was possible for him to fix the rent in these cases after a consideration of all the circumstances and on considering these circumstances he came to the conclusion that the rent must be fixed on the calculation that every parcel of the holding of 22 bighas was of equal value and the rent of Rupees 472 could be equally distributed on every bit of land.
4. In my opinion the learned Additional District Judge was not competent to fix the rent in a suit for arrears of rent. The suit for arrears of rent could only have been decreed if the rent was fixed from before. If the rent was unsettled, the pro-per course for the plaintiff was to have the rent first fixed by bringing a suit under Section 45, Agra Tenancy Act, and after having got the rent fixed he should have sued for arrears of rent under Section 132 of that Act. The two suits, as framed, were, as I have already said, misconceived. These appeals must therefore succeed. I accordingly accept both the appeals, set aside the decision of the lower Appellate Court and dis. miss both the suits of the plaintiff. As to costs, I think under the circumstances of the case it will be fair to make each party bear its own costs throughout. The defendants have succeeded in evading payment of the rent hitherto due and the past rent is no longer recoverable from them by the plaintiff. Leave to file Letters Patent appeal is granted.