Ghose and Brett, JJ.
1. This is a suit for recovery of rent in respect of certain lands held by the principal defendants as raiyats under the plaintiffs, who, it appears, have obtained a howladari lease of the same from the zemindar defendants. It comprises a claim for additional rent for excess area in the ocoupation of the defendants.
2. The learned District Judge has given the plaintiffs a modified decree; and against that decree the principal defendants have appealed to this Court.
3. The first point that has been raised on behalf of the appellants 'by their learned Vakil is that the suit is not maintainable for non-joinder of necessary parties, it being contended that one Hari Charan Majhee to -whom the defendants had sold a portion of their raiyati interest has not been included as a party defendant, and that the zemindar defendants should have been added as party defendants. The second ground taken is that under the terms of the grant in favour of the plaintiffs, they are not entitled to recover any additional rent in respect of any excess area in the occupation of the defendants. And-the third ground urged upon us is that, supposing the plaintiffs are entitled to any rent for any excess area in the occupation of the defendants, still they cannot recover it, until the amount of such excess area has been determined in the present case. These are the principal contentions raised before us. One or two other points were also mentioned, but they were not seriously urged.
4. So far as the first-mentioned contention is concerned, it appears, on looking at the kobala executed by the principal defendants in favour of Hari Charan Majhee, that they assigned over to him a certain specified portion of the holding in their occupation, and bearing a proportionate rent payable to the landlord, liberty being reserved to the assignee to use his name both in the sudder and in the mofussil, meaning thereby that the vendee should be entitled to have his own name entered in the zemindar's rent roll, in expunction, as it were, of the names of the vendors; and also to put himself forward as the owner of those lands in the mofussil. And we find that, as a matter of fact, the said Hari Charan Majhee has entered into a separate settlement in respect of the lands thus assigned to him--the result being that the original holding in the occupation of the principal' defendants has been made into two, holdings--one in favour of the defendants and the other in favour of Hari Charan Majhee. That being so, it is obvious that neither the zemindars nor Hari Charan Majhee were necessary parties to this suit. We accordingly overrule the first point raised before us.
5. With reference to the second question raised, whether, under the terms of their grant, the plaintiffs are entitled to recover additional rent for excess lands', the learned Vakil for the appellants has, in the course of his argument, relied upon the following provision in the howladari pottah executed in favour of the plaintiffs:
That you shall not hold possession of any land in excess of those covered by this pottah. If, on inquiry made in future, any excess land be found in your possession, we will be competent to evict you from such excess land, and settle it with a third party as khudkast, and to this you shall not be competent to take any objection.
6. His contention is that the zemindars, while granting this howladari lease to the plaintiffs, did not intend to create any interest in them as regards any excess lands found 'within the boundaries specified in that lease. On referring, however, to the other provisions of the pottah, we find that it was a lease of all the lands comprised within the boundaries specified at the foot of the document. No doubt, the said boundaries were said to contain a certain specified area; but we are unable to hold, as it has been contended, that the zemindars really intended to deprive the lessees of any land within the said boundaries if, on a measurement thereafter made, the actual quantity as comprised therein would appear to be in excess of the quantity specified in the pottah itself. It would rather appear that this .provision had reference to any lands outside the boundaries specified in the pottah, and this would be but consistent with reason and common sense.
7. Upon these grounds we also overrule this point.
8. Now, as regards the third point raised before us, it appears that in the year 1299 B. S., the plaintiffs caused a measurement of the lands said to be in the occupation of the appealing defendants, and it was upon the footing of this measurement that they claimed rent for 1300 B. S. and the following years. Under the orders of the District Judge, a measurement of the said lands was made in the course of this suit by an amin, who was deputed for that purpose, and the District Judge has found that a small portion of the lands measured by the plaintiffs' people in 1299 as in the occupation of the defendants is not in their possession but in the possession of some other party, and that the defendants are liable to pay additional rent for the excess area that was found in their occupation. The contention of the appellants, however, is that, until a determination was come to in the course of this suit as to the quantity of excess land in their occupation, no back rent could be claimed. No doubt, Section 52 of the Bengal Tenancy Act merely lays down the liability to pay additional rent for excess lands proved to be in the occupation of a raiyat; but there is nothing in the Act itself to debar the landlord from claiming back rents for any additional area, if such additional area is in the use and occupation of the raiyat, provided, of course, the period for which such claim is made is within the statutory period as prescribed by the Limitation Act. It will be further observed that there is no such provision in Section 52 or any other section of the Act, as is to be found in section 154, which prescribes the time from which a decree for enhancement of rent is to operate. And we further find that the precise question raised before us was considered in an unreported case Appeal from Original Decree No. 859 of 1898, decided on the 14th December 1900. by a Division Bench of this Court, and it was there held that the landlord is entitled to claim back rent for the land found in his occupation. This view seems also to be supported by some of the observations of another Division Bench of this Court in the case of Assanullah, Bahadur v. Mohini Mohan Das (1899) I. L. R. 26 Calc. 739. Upon these grounds we are unable to accept the contention of the learned Vakil for the appellants; and we accordingly also overrule it.
9. The result is that this appeal will be dismissed with costs.