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Mohceb Ali Alias Dummur and anr. Vs. Ameer Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal539
AppellantMohceb Ali Alias Dummur and anr.
RespondentAmeer Rai and ors.
Cases Referred and Jugobundhu Pattuck v. Jadu Ghose. Alhinhi I.L.R.
Excerpt:
bengal tenancy act, 1885 sections 158 and 188 - joint-landlords--application, under section 158 by one of secral joint-landlords--refusal by joint-landlords to join in such application, effect of. - .....arises out of an application made under section 158 of the bengal tenancy act by two out of four joint landlords, and the application has been rejected by both the lower courts as being barred by section 188 of the same act. there is no question whatever that upon the allegations of the parties the landlords in this case are joint; they are undivided co-sharers apparently collecting the rents jointly. now section 188 of the act runs as follows: 'where two or more persons are joint landlords, anything which the landlord is under this act required or authorized to do must be done either by both or all those persons acting together, or by an agent authorized to act on behalf of both or all of them.' an application by a landlord under section 158 is a thing which the landlord is authorized.....
Judgment:

Ghose and Beverley, JJ.

1. This appeal arises out of an application made under Section 158 of the Bengal Tenancy Act by two out of four joint landlords, and the application has been rejected by both the lower Courts as being barred by Section 188 of the same Act. There is no question whatever that upon the allegations of the parties the landlords in this case are joint; they are undivided co-sharers apparently collecting the rents jointly. Now Section 188 of the Act runs as follows: 'Where two or more persons are joint landlords, anything which the landlord is under this Act required or authorized to do must be done either by both or all those persons acting together, or by an agent authorized to act on behalf of both or all of them.' An application by a landlord under Section 158 is a thing which the landlord is authorized to do under the Bengal Tenancy Act and under that Act alone; there is no other law that authorizes him to make such an application to the Court. It follows that when there are two or more joint landlords, the application must be made by all of them acting together.

2. In the present case two of the four co-sharers, it is alleged, refused to act with the others in making the application, and the applicants have endeavoured to meet the requirements of Section 188 by making them parties to the proceeding. But this, we think, is not a sufficient compliance with the provisions of the section; the four co-sharers are not acting together in making the application. Unless they all units in making the application, we think it is not a legal application under Section 158 which the Court is competent to act upon. No doubt under the law as it existed prior to the passing of the Tenancy Act, and as it was expounded by the decisions of this Court, one of several co-sharers could, under certain circumstances, sue to enhance the rent-Chuni, Singh v. Hera Mahto I.L.R. 7 Cal. 633, Kali Chandra Singh v. Rajkishore Bhuddro I.L.R. 11 Cal. 615, Rash Behari Mukerji v. Sakhi. Sundari Dasi I.L.R. 11 Cal. 644-or could apply for a measurement of the lands-Abdool Hossein v. Lall Chand Mohtan I.L.R. 10 Cal. 36. But it is extremely doubtful whether after the passing of the Bengal Tenancy Act' and in view of Section 188 of that Act, these things may now be done by a joint co-sharer. But whether this is so or not, it seems to us that no argument can be drawn from it that under the present law an application for the determination of the incidents of a tenure may be made by a joint shareholder. Section 188 is an entirely new provision in the law of landlord and tenant in Bengal, and we cannot suppose that it was introduced without a deliberate intention on the part of the Legislature. An argument was also sought to he drawn from the fact that a suit may be brought, notwithstanding the provisions of Section 188, by a co-sharer for his share of the rent of an undivided tenure. But this stands, as has been explained in the cases of Prem Chand Nuskur v. Mokshoda Debt I.L.R. 14 Cal. 201 and Jugobundhu Pattuck v. Jadu Ghose. Alhinhi I.L.R. 15 Cal. 47, upon a wholly different ground. It has been argued before us that, in the view we take of the law, great injustice may be done in certain cases; as, for instance, if an auction-purchaser of an undivided share in an estate, who is unable to obtain information regarding the property either from the tenants or from his co-sharers, is debarred from applying for a determination of the particulars of the property under Section 158. It is pointed out that such cases may occur even where no dispute exists as to the management of the property such as would enable a co-sharer to apply for the appointment of a common manager under Section 93 of the Act. This may be so, hut the language of Section 188 seems to us to be clear and explicit, and we do not feel ourselves at liberty to overlook its provisions or to strain it in any way.

3. The appeal must be dismissed with costs.


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