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JoynaraIn Hazrah Vs. Doorga Prosad Mytee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1877)ILR2Cal475
AppellantJoynaraIn Hazrah
RespondentDoorga Prosad Mytee and ors.
Cases ReferredRakhal Chunder Roy Chowdhry v. Mahtab Khan
Excerpt:
co-sharers - ijaradar--enhancement of rent--beng. act viii of 1869, section 18. - .....secondly, that as be held only a share in the rent, he could not enhance without making all his co-sharers parties to the suit. another objection is taken that the defendants bold under a mokururee patta. but the finding of the lower appellate court, that there is a total absence of satisfactory evidence with regard to the alleged mokururee tenure completely disposes of this point. the law as laid down by lower appellate court that, unless there is an express stipulation against the enhancement of rent by an ijaradar, he can exercise that power, is in accordance with the law as laid down in the case of rushton v. girdharee tewaree marsh. 331; and the correctness of that ruling cannot be disputed. on the other point, whether being an ijaradar he has the right to enhance without making the.....
Judgment:

Prinsep, J.

1. The plaintiff, as ijaradar of a third share, sues for rent at an enhanced rate. After the determination of the rate to which he is entitled, the rent has been decreed by the Lower Appellate Court. In special appeal two objections are taken to this decision: first, that inasmuch as the plaintiff was only an ijaradar, He had no right to enhance the rent; and secondly, that as be held only a share in the rent, he could not enhance without making all his co-sharers parties to the suit. Another objection is taken that the defendants bold under a mokururee patta. But the finding of the Lower Appellate Court, that there is a total absence of satisfactory evidence with regard to the alleged mokururee tenure completely disposes of this point. The law as laid down by Lower Appellate Court that, unless there is an express stipulation against the enhancement of rent by an ijaradar, he can exercise that power, is in accordance with the law as laid down in the case of Rushton v. Girdharee Tewaree Marsh. 331; and the correctness of that ruling cannot be disputed. On the other point, whether being an ijaradar he has the right to enhance without making the co-sharers parties, it seems to me that, as he had admittedly received a specific sum for rent originally, no doubt calculated on a specific share, but for a long time received independently of the other co-sharers, it was in no way necessary that he should make those co-sharers parties to this suit. The decision of a Full Bench of this Court in Doorga Churn Surma v. Jampa Dossee 12 B.L.R. 289; S.C. 21 W.R. 46, does not appear to be in point; the facts as they appear in the judgment of Mr. Justice JACKSON not being the facts that I have already stated. In that case it would seem that there was no separate collection of rents from the ryots on the plaintiff's share; but that the rents were collected jointly on behalf of all the landlords. The law seems to have been clearly laid down in the case of Gunga Narain Das v. Saroda Mohun Roy 3 B.L.R.A.C. 230 : S.C. 12 W.R. 30 that if the plaintiff, landlord, either proves that the tenants have paid their rents to him separately, or proves an express agreement on their part to pay his rent separately, the suit will lie by that landlord having only a share, in the absence of his other shareholders. And if he can bring a suit for arrears of rent on his specific share, there seems to be no reason why he should not be able to enhance that particular rent. The decision in Dhookee Ram Sircar v. Gowhur Mundul 10 W.R. 307 as I read it, goes only so far as to state that, in order to arrive at a proper conclusion as to the amount of rent duo to one having only a share in the property, the calculation must be based on an enhancement of the entire share; that the rent of the entire share should be enhanced as regards the payment of the full rent by the ryot does not appear to be necessary. In my opinion, therefore, there is no reason why the plaintiff who has himself, and whose lesser has also realized rent separately from the ryot on his one-third share, should not be able to sue for rent at an enhanced rate, even although he may not have joined his co-sharers as parties to the suit. I find also that this opinion is in accordance with that expressed by Mr. Justice Glover in the ease of Rakhal Chunder Roy Chowdhry v. Mahtab Khan 25 W.R. 221. The special appeal will, therefore, be dismissed with costs.


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