1. The present appeal arises out of a suit brought by the plaintiff-appellant to recover rent from the defendants for certain lands in their possession for the year 1307.
2. The defendants raised the plea in defence to the suit that the suit could not proceed against them for the full rent claimed, because there had been a sub-division of the holding or tenure by the sale of a portion thereof to a third party, and that the suit could not proceed unless that third party was made a party to it, and that the plaintiff could not recover the full rent for the holding from the defendants as they were only in possession of a portion of the same.
3. The Munsiff held that the plea of the defendants was untenable, because, even supposing that it was within their right to sell a portion of the holding, yet the provisions of Section 88 of the Bengal Tenancy Act had not been complied with and that, therefore, even if any sub-division of the holding had been effected by such sale, it was not binding on the landlord. He, therefore, decreed the plaintiff's suit, there being no real contest as to whether the rent was due or not.
4. On appeal, the Subordinate Judge has set aside the judgment and decree of the Munsif and has remanded the case to the Munsif for re-trial. He has assumed that the holding of the defendants was a permanent tenure, and he remarks that, 'according to the principle of Section 17 of the Tenancy Act, a portion of it can be sold subject to the provisions of Section 88 of the same Act.' He then proceeds to say,--'The purchaser of a portion of the tenure should be made a party and the tenure will be liable for the whole amount of rent; a portion of the tenure will not form a separate tenure.' He, accordingly, remanded the case to the Munsif in order to determine whether a portion of the tenure was sold, and if it was sold, to make the purchaser a party to the suit.
5. The landlord has appealed against the decision of the Subordinate Judge, and it is contended on his behalf that no sale of any portion of the tenure which would have the effect of dividing the tenure could be binding on the landlord so as to prevent him from bringing a suit against the old recorded tenant, unless, under the provisions of Section 88 of the Bengal Tenancy Act, his consent in writing had been obtained to the division of the holding and the distribution of the rent. It is contended that the view taken by the Subordinate Judge was wrong, and that, on the pleadings of the defendants, the case ought not to have been remanded in order that the purchaser might be made a party.
6. On behalf of the respondents it has been contended--not in strict accordance with the pleadings of the defendants in the suit--that as there had been a sale of a portion of the defendants' interest in the holding to a third party and as that third party was jointly liable with the defendants, after that sale, for the rent of the holding, the plaintiff could not succeed in the present suit without making the purchaser a joint defendant with the other defendants in the suit.
7. That, however, was not the case set up before the Court of first instance and is not one which, under the circumstances of this suit, can be maintained. The defence was not that the purchaser was jointly liable with the defendants for the whole rent, but that the defendants were not liable for the whole rent by reason of the fact that there had been a division of the tenure and a transfer of a portion of the same by purchase to a third party. The written statement contains distinct allegations of the shares and portions of the holding which were Hold, and it distinctly alleges that the liability of the defendants for rent for those portions of the holding ceased from the date of sale, and that the liability of the purchasers commenced from that date. Such sub-division of the holding or the distribution of the rent as the defendants set up in their defence to this suit could not, having regard to the terms of Sections 17 and 88 of the Bengal Tenancy Act, be binding on the landlord, unless his consent in writing had been obtained to the subdivision, and, therefore, the landlord could not be held in this suit to have been bound, by reason of the provisions of the Act, to make the purchaser a joint defendant with the defendants who were the only persons recorded as tenants in the sherista.
8. We think that the view which the Subordinate Judge took of the law is incorrect, and that as if was not contended in this case that the provisions of Section 88 of the Bengal Tenancy Act had been strictly complied with, it was not necessary for the Munsif to take evidence to determine whether a portion of the holding was sold.
9. It has no doubt been suggested by the learned Vakil for the respondent that there was a sufficient compliance with the provisions of Section 88 of the Bengal Tenancy Act, because, previously, when there was a dispute with regard to the holding which was settled by a solenamah, the terms of that solenamah were such as not only to constitute the holding a permanent tenure but also to give to the defendants the right to transfer a portion of the holding to a third party without any further consent from the landlord.
10. We are unable to accept the suggestion as valid. The learned Munsif has, in our opinion, arrived at a correct conclusion with reference to this solenamah decree, holding that the terms of that decree can only be interpreted to mean that the plaintiff gave her consent to the holding being constituted as stated therein, and even if it could be taken as giving her consent to a transfer of the whole, it could not be taken as her written consent to the division or distribution of the rent of that holding, even though possibly under the law the defendants might be entitled as holders of a permanent tenure to make a transfer of a portion of their interest in the same to a third party.
11. In our opinion, therefore, the defence set up by the defendants in the present suit was not a valid defence and the contention that the plaintiff could not succeed in the suit against them without making the purchaser of a (sic) of the holding a joint defendant with (sic) was not sound. The plaintiff was not bound to recognise any sub-division of the holding, unless the provisions of Sections 12 and 17 of the Bengal Tenancy Act had been strictly complied with, or to sue to recover rent of the holding from any body except the persons whom she had recognized as the tenants.
12. The grounds, therefore, on which the learned Subordinate Judge has set aside the judgment and decree of the Munsif and directed a remand of the case are not, in our opinion, correct. His judgment and order are, therefore, set aside and in lieu thereof the judgment and decree of the Munsif is (sic) restored.
13. The result, therefore, is that the appeal is decreed and the judgment and decree of the Munsif, which decreed the suit in favour of the plaintiff, restored with costs in all the Courts.