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Fateh Bahadur and ors. Vs. Lalta Pershad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in17Ind.Cas.488
AppellantFateh Bahadur and ors.
RespondentLalta Pershad and ors.
Excerpt:
agra tenancy act (ii of 1901), section 94 - co-sharers declining to join as co-plaintiff s for recovery of rent--maintainability of suit by one co--sharer alone. - - 194 of act ii of 1901 distinctly supports the contention of the appellants......in equal shares. the shares of the two were known as ten biswas each. on january 3rd, 1905, nand kumar and kumar bahadur executed a lease of the village in favour of lalta pershad reserving an annual rent of rs. 195. on july 5th, 1907, nand kumar executed a deed of gift in favour of his three minor sons, the plaintiffs-appellants, in respect of 9 biswas and 15 biswansis share out of his 10 biswas share in ismailpur. on october 8th, 1910, the plaintiffs appellants instituted a suit in the court of the assistant collector of farrukhabad to recover their share of rent for 1315 to 1317 faslis. it was alleged in the plaint that they had sued for their share only as the other co-sharers, viz., nand kumar and kumar bahadur, had declined to join them in the suit for which reason the.....
Judgment:

1. Nand Kumar and Kumar Bahadur owned the village of Ismailpar in equal shares. The shares of the two were known as ten biswas each. On January 3rd, 1905, Nand Kumar and Kumar Bahadur executed a lease of the village in favour of Lalta Pershad reserving an annual rent of Rs. 195. On July 5th, 1907, Nand Kumar executed a deed of gift in favour of his three minor sons, the plaintiffs-appellants, in respect of 9 biswas and 15 biswansis share out of his 10 biswas share in Ismailpur. On October 8th, 1910, the plaintiffs appellants instituted a suit in the Court of the Assistant Collector of Farrukhabad to recover their share of rent for 1315 to 1317 Faslis. It was alleged in the plaint that they had sued for their share only as the other co-sharers, viz., Nand Kumar and Kumar Bahadur, had declined to join them in the suit for which reason the latter had been made co-defendants with Lalta Pershad. Lalta Pershad alone resisted the suit. He stated in defence that the rent for the years in suit had been paid to Nand Kumar and that the rate of rent given in the plaint was incorrect. During the pendency of the case, Lalta Pershad raised a further plea to the effect that the plaintiffs-appellants, as members of a joint undivided Hindu family, could not sue alone. The Assistant Collector passed a decree in favour of the plaintiffs-appellants ignoring the plea of Lalta Pershad of non-maintainability of the suit, which was raised by him at a late stage in the case. The latter preferred an appeal to the District Judge who framed three additional issues and remanded the case. One of the issues remanded for trial was whether the plaintiffs-appellants could sue alone. The Assistant Collector held that they could sue alone. Lalta Pershad filed objections to the finding of the Assistant Collector. The learned District Judge disposed of the appeal on one point only, viz., whether the suit was maintainable by the plaintiffs-appellants alone. He found that issue against the plaintiffs-appellants on the authority of the case of Manohar Das v. Munzur Ali (1). In second appeal, it is contended that the ruling, relied on by the learned District Judge, is no more applicable, as under the new Agra Tenancy Act, one out of several joint co-sharers can bring a suit for the recovery of rent to the extent of his Share on the refusal by the other co-sharers to join him as co-plaintiffs. In the present case, the plaintiffs-appellants sued in respect of their share,stating in paragraph 5 of the plaint, that both Nand Kumar and Kumar Bahadur had declined to join as co-plaintiffs in the suit. The allegations made in paragraph 5 of the plaint were never challenged by Lalta Pershad, or Kumar Bahadur and Nand Kumar. Clause 3 of section. 194 of Act II of 1901 distinctly supports the contention of the appellants. I, therefore, hold that the suit of the plaintiffs-appellants is maintainable. I set aside the decree of the lower Appellate Court and remand the case under Order XLI, Rule 23, to the lower Appellate Court for disposal according to law. Costs of this appeal will be paid to the appellants. The Court-fee will be refunded.


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