1. This appeal arises out of a suit for enhancement of rent, and for additional rent for additional area comprised in a jote.
2. The jote consisted originally of about 3,320 bighas of land, and was held by one Mr. Poulson at a rent of Rs. 63-13-5, The defendants' father was the landlord in respect of the jote a 5-annas share in patni right and 11-annas shares as a proprietor. He brought a suit for enhancement of rent of the jote in 1867 which went up to the Privy Council, and the jama was enhanced to Rs. 1,805-10-10 the lands of the jote being found to be 3,340 bighas, During the pendency of that litigation, one Khantokali Dasi obtained a decree against the defendants in respect of the 5-annas patni right of the village in which the lands are situate. She let out the 5-annas share to the plaintiffs in 1876. The defendants then, purchased the entire tenancy from the heirs of Mr. Poulson. The defendants thus had a 11-annas share of the landlord's interest and the entire interest of the tenant, and the plaintiff had the landlord's interest in respect of a 5-annas share.
3. It appears that when the plaintiff was about to sue the defendants for his share of the rent at the enhanced rate, an arrangement was arrived at, and the defendants agreed to pay rent to the plaintiffs at the rate of Rs. 554-10-10.
4. The plaintiffs have brought the present suit on the allegation that there has been accretion to the jote, and that the defendants are liable to pay reasonable rent, for the excess lands, which might be assessed for 1315.13.8 B.S. They have also claimed enhanced rent for the lands of the original jote and for recovery of such rent for Pous kist of 1318 B.S.
5. The defence was that the jote was an occupancy holding; that the rent was not enhanceable; that there was no accretion, and the rent was being paid at a fair and equitable rate, and that the plaintiff was a co-sharer landlord and, therefore, could not maintain the suit.
6. The Court of first instance held that the jote was a tenure the rent of which was liable to enhancement; that there was some accretion for which the defendants were liable to pay rent at the rate of Rs. 1-1-0 per bigha. On appeal, the learned Judge held that the plaintiff was entitled to enhance the rent, and fix the enhanced rate at 13 1/2 annas per bigha; that 203 bighas 18 chittaks was the accretion to the jote, and in the result modified the decree of the Court of first instance. The defendants have appealed to this Court, and the plaintiffs have preferred cross-objections.
7. The first question for consideration is, whether the plaintiffs are entitled to maintain the suit. That depends upon whether the plaintiffs are the sole landlords or joint landlords of the 5 annas share of the jote. If they are joint landlords it is clear that they cannot maintain the suit. [See Section 188, Bengal Tenancy Act and Jatindra Nath v. Prasanna Kumar 8 Ind Cas. 842 : 38 C. 270 : 15 C.W.N. 74 : 9 M.L.T : 13 C.L.J.51 : 8 A.L.J.1 :13 Bom, L. R, 1 : 21 M.L.J. 922 : (1911) 2 M.W.N. 149 : 38 I.R. 1 (P.C.).]. The learned District Judge is of opinion that there was a merger of the 11-annas share of the jote right in the 11-annas proprietary right after the purchase of the jote by the defendants. We do not think that there was merger by the purchase of the jote right by the defendants. Apart from Statute, a tenure does not necessarily merge in the proprietary right upon the union of the two interests. See Hirendra Nath Dutt v. Hari Mohan Ghose 22 Ind. Cads., 966, 18 C.W.N. 860, Rambishen Dutt v. Haripada Mukerjee 51 Ind. Cas., 389 : 29 C.L.J. 427 : 23 C.W.N. 830]. In the present case the union of the two interests took place before the passing of the Transfer of Property Act. But even under the Statute, there must be an union of the entire interest of the lessor and the lessee. See Section 111, Clause (d), of the Transfer of Property Act. So that, even if the Transfer of Property Act applied, there would be no merger, as the proprietary interest of the defendants and their interest as tenure holders are not co-extensive.
8. But, although there was no merger, the question arises whether by the arrangement referred to above a new tenancy was created between the parties under the plaintiffs with respect to the 5-annas share of the tenure. The mere fact that the tenant agrees to pay rent separately to one of the co-sharer landlords would not constitute a separate tenancy. Where, however, there is a separate kabuliyat in favour of one of the so sharer landlords it has been held in some cases that there is a separate tenancy.
9. It is contended on behalf of the appellants that the arrangement arrived at was nothing more than an agreement on the part of the defendants to pay the rent payable in the plaintiffs' share minus certain amount as (mahkup) remission separately, and did not create a new jama. We were referred to a hisab of the defendants of the year 1290 which states the total rent of the jote, the proportionate rent in plaintiffs' share and after deducting the amount of the mahakup, the balance is shown to be the jama in the plaintiffs' share. The jama agreed upon as payable to the plaintiffs is not proportion ate to the original jama, as the sum of Rs. 38 was deducted as mahakup. We do not see how it can be said that the old jama continued to exist when the jama agreed upon to be paid to the plaintiff's was Rs. 34 less than what wag proportionately payable in their 5-annas share. It does not appear that the mahakup of Rs. 24 was for a particular year of a temporary one. It also does not appear that there was any such mahakup in the defendants' share, nor could there be, having regard to the finding that there was no intention to keep that share of the tenancy alive. The jama is found to have been reduced at the time when the plaintiffs were about to sue the defendants for rent at the rate allowed by the Privy Council. It is true that the hisab is headed as 'Re Poulson's jote' but it might have been so written for the purpose of identifying the jote. The learned Pleader for the respondent contends that the hisab of 1290 is not the only evidence and there are other documents on the point.
10. As stated above, in the present case the interest of the defendants in the jote is found to be that of a tenure holder, and, although the land of the 5-annas share is undivided, no question of undivided parcels of land arises as in the case of a holding. Then, again, in the present case there is no person interested in the land other than the plaintiffs and the defendants.
11. The question whether a separate tenancy is created, depends upon the circumstances of the case. The learned Subordinate Judge has, upon all the circumstances of the case, some to the conclusion that a new jama was created by the arrangement referred to above, and we are unable to hold that he was wrong.
12. The plaintiffs have claimed rent at the enhanced rate for the Pous kist, of 1318. This they are not entitled to do having regard to the provisions of Section 154 of the Bengal Tenancy Act. The enhanced rate will be operative from the year 1321 B.S. It is contended that the plaintiff is not entitled to get rent for the cases area also at a rate higher than the original rate before the year 1321. It is contended for the respondents that as the excess area, was being assessed with rent for the first time, there could be no question of enhancement of rent. It is true that the accreted land must be considered; as an increment to the tenure and governed by the same terms and conditions, and, in the absence of any special circumstances, the rate of rent payable for the accreted land would be the same as that for the land of the parent tenure. But no rent was paid for the accreted land, though, as stated above, in the absence of special circumstances, it was payable at the same rate as that for the parent tenure and there being no provision in Section 52 such as is contained in Section 154, we think that the defendants are liable to pay the enhanced rent, for the past period also. It is contended for the appellant that the learned Judge having found 203 bighas, 18 cottahs to be the accreted area, is wrong in taking 545 bighas to be the excess area upon which the rent is to be assessed. It is contended by the learned Pleader for the respondent that 545 bighas is the total addition to the tenure, 203 bighas being the alluvial accretion. There is nothing, however, in the judgment to show that there was any excess area other than by accretion and we are of opinion that additional rent should be assessed upon the basis of 203 bighas, 18 cottahs being the excess area.
13. The plaintiffs have preferred cross objections on three grounds. The, first is; that 63 bighas of lands covered by roads in the tenure should have been assessed with rent. But the learned Judge practically finds that the roads did not some, info existence after the creation of the tenure. He also finds that there is nothing to show that the defendants are in a position to make these lands yield any income to them and that it would not be equitable to assess rent on plaintiffs' share of these lands.
14. The next ground relates, to 98 bighas which the defendants say do not appertain to the tenure. The learned Judge finds that the plot of 98 bighas is separated from the lands of the tenure by another block of land, and the tenure admittedly is one compact block of land. He also finds that the evidence on behalf of the plaintiffs ia not at all satisfactory to show that the plot is a part of the disputed jote. It is contended that no objection was taken with respect to it in their written statement. But the learned Pleader for the appellant explains it on the ground that the boundaries (west of Chaudhurie's jote) given in the plaint excluded these 98 bighas, and no objection was, therefore, taken in the written statement, but that when the Commissioner went to the spot and the plaintiffs pointed out the Chaudhurie's land (the 93 bighas) as part of the jote it was then that the defendants raised the objection before the Commissioner that it was not part of the jote.
15. The third ground relates to the rate of rent. The Court of first instance held the rate, to be Rs. 1-10 per bigha. But that Court found that no, customary rate had been proved with reference to which the rent of the tenure could be, enhanced. The learned Judge on appeal observes that the evidence on the record justified that conclusion. The evidence of the only one witness on the point, as to the payment of rent at the rate of Rs. 1-1-0 per bigha to the defendants has been considered by the Judge, and he has given good reasons for holding that 13 1/2 annas per bigha is the fair and reasonable rate. It is contended that the learned Judge has not taken into account the rate paid for a big tenure in the vicinity and the settlement papers. But no ground is taken in the grounds of cross appeal that the Judge had omitted to consider any evidence.
16. We are accordingly of opinion that the cross objections should be disallowed. The decree of the Court below is modified as stated above. A fresh calculation of the rents will be made in this Court, and the costs of the lower Courts will be assessed accordingly. No order as to costs in this Court on the appeal or the cross-objections.