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Raj Chandra Bhowmick Vs. K. Habibulla and ors. - Court Judgment

LegalCrystal Citation
Subject Tenancy
CourtKolkata
Decided On
Reported inAIR1930Cal693
AppellantRaj Chandra Bhowmick
RespondentK. Habibulla and ors.
Cases ReferredGovind Chandra Pal v. Hamidulla Bhuiyan
Excerpt:
- .....of six annas each, one taluk of three annas and one taluk of one anna. this last mentioned one anna share was held by one ramdhone nath. he died some time ago, and on or about the dates hereinafter preferred to, his heirs and successors were in possession of the said patni taluk of one anna share under the plaintiffs on payment of a um of rs. 82-15-0 as annual rental. in 1918 there were arrears of rent due on account of the said one anna share. a suit was instituted by the plaintiffs for the recovery of the arrears; a decree was obtained and in execution of the decree for arrears of rent the plaintiffs purchased the patni interest in the said one anna share. the sale was confirmed some time in 1920. the plaintiffs obtained delivery of possession in 1921. their case is that the lands.....
Judgment:

Rankin, C.J.

1. The facts involved in these appeals shortly stated, are a9 follows :.The plaintiffs are the zamindars of mauza Islampur, bearing Tauzi No. 446 of the Tipperah Colleotorate. The mauza, according to the plaintiffs, was held under them in patni in certain defined shares, i.e., two taluks of six annas each, one taluk of three annas and one taluk of one anna. This last mentioned one anna share was held by one Ramdhone Nath. He died some time ago, and on or about the dates hereinafter preferred to, his heirs and successors were in possession of the said patni taluk of one anna share under the plaintiffs on payment of a um of Rs. 82-15-0 as annual rental. In 1918 there were arrears of rent due on account of the said one anna share. A suit was instituted by the plaintiffs for the recovery of the arrears; a decree was obtained and in execution of the decree for arrears of rent the plaintiffs purchased the patni interest in the said one anna share. The sale was confirmed some time in 1920. The plaintiffs obtained delivery of possession in 1921. Their case is that the lands of the one a one had been separated from the lands of the other shares and their one anna patni taluk comprised certain plots exclusively belonging to it and certain undivided but defined shares of other plots held by it jointly with another of these patnia, apparently a patni of three or two and a half annas. That this is really the position is not now disputed. Nor is it disputed that the defendants in these suits are in fact in possession of the whole of both sets of plots, viz. those exclusively belonging to the plaintiffs' patni and those belonging jointly to the plaintiffs' patni and the other patni. The plaintiffs further say that after their purchase of the one anna patni they came to know that in the settlement records (the settlement having taken place before the purchase of the said one anna share by the plaintiffs) the defendants had been recorded as being in possession in mirash right. In point of fact the Record-of-Bights does not record the defendants as holding solely under the one anna patni. It records the mirash as being held under both the patnis, but the plaint confines its allegation to the plaintiffs' patni. According to the plaintiffs the mirash right, or whatever it was, was in the nature of an incumbrance and accordingly, as they allege, a notice under Section 167, Ben. Ten. Act, was served by the plaintiffs on tie defendants with a view to cancel the incumbrance. The plaintiffs thereafter instituted the present suits in 1926 against the defendants' praying (inter alia) (a) for a declaration that the defendants had no mirash right in the plaintiff's patni lands and that the plaintiffs were entitled to get the said lands assessed to rent at the rate prevalent in the locality; and (b) for assessment of fair and equitable rent and for recovery of the same. The tenants who were in possession of specific lands alleged to belong to the said one anna share were different, and the khatians in which their mirash right was recorded were numbered 317, 318, 319, 321, 323 and 324. This fact accounts for the circumstance that the plaintiffs had to bring separate suits.

2. The defendants raised various contentions in their written statements. I do not propose to set out in detail the contentions of the defendants except one. The defendants alleged that the lands in suit were held by them in mirash right under the patnidars of a certain 2 1/2 annas share in mauza Islampur and not under the one anna share which originally belonged to Ramdhone Nath. According, to them there were two brothers of the name of Earn Mohan and Basi Nath and each of them owned a 2 annas share in patni in the said mouza. Earn Mohan had two 3ons named Eamdhone and Kristo Mangal. Ramdhone had a one anna share and Kristo Mangal had a one anna share. It is alleged that Ramdhone sold anna out of his 1 anna share to Bashi Nath and that the latter thereby became owner of 2 1/2 annas share in patni. The contention of the defendants was, to repeat that they held the lands under this last-mentioned 2 1/2 annas share and not under the 1 anna share. They therefore argued that the present plaintiffs had no cause of action and further that should it be found that some of the lands held by them did belong to the share which originally belonged to Ramdhone Nath and that some belonged to the said 2 1/2 annas share, the present suits were bad inasmuch as the owners of the 2 1/2 annas share had not been made parties thereto.

3. All these suits came on for hearing before the learned Munsif of Gomilla and the following specific issues were raised on the pleadings in the said suits:

(a) Ate the suits bid for defect of parties?

(b) Are the suits barred by Section 188, Ben. Ten. Act and

(c) Do the suit lands appertain to one annas hisya (share) or do those lands appertain to ij annas hisya?

4. The learned Munsif held that Section 188, Ben. Ten. Act, did not operate as a bar but, having regard to the prayers, of the plaintiffs in their plaints, the? owners of the 2 1/2 annas hisyas were : necessary parties. The learned Munsif further held that the purchase of the said one anna share by the plaintiffs in execution of their rent decree was-under the Bengal Tenancy Act and: not under the Patni Regulation, that the notices under Section 167 were not served within the time limited by statute, that therefore the mirashes, mention of which is to be found in the settlement record, had not been annulled, that on the evidence adduced on behalf of the plaintiffs it was clear that some of the lands in suit were held1 exclusively under the said one anna share and that some were held jointly under the said one anna and 2 1/2 annas shares, that the presumption about the correctness of the entries in the settlement records had not been rebutted and that therefore the plaintiffs were not-entitled to any reliefs fn these suits. The Munsif thereupon dismissed these-suits. The matter of these suits was carried on appeal to the learned Subordinate Judge of Tipperah and his findings were as follows. He found thai Regn. 8 of 1819 applied to the share in which the mouza had been let' out in patni and that the one anna share which originally belonged to Eamdhone had passed to the plaintiffs under the sale in execution of the rent decree-referred to above, that the plaintiffs were not bound to recognize the transfer of the anna share out of the said one anna share and that the plaintiffs were entitled to annul incumbrances if any really existed, that the mirashea relied upon by the several defendante did not exist and that there was no evidence in support of the entries is the settlement records, that the defendant's mirashes being non-existent, no question of any notice under Section 167, arose, and lastly that the fact that some plots of the said one anna share were joined with the lands of the two and half annas share did not preclude the plaintiffs from obtaining the reliefs, prayed for by them and that there was no defect of parties. He accordingly allowed the appeals pending before him with costs. The defendants thereupon preferred appeals to this Court. These appeals were heard by my learned brother Mukerji, J., and by his judgment dated 30th January 1929, the second appeals in question were dismissed. Thereafter the present appeals have been brought under the Letters Patent.

5. Before my learned brother several points were urged on behalf of the defendants tenants. Mukerji, J., accepting the findings of fact by the learned Subordinate Judge, negatived the contentions that the plaintiffs had not acquired title to the 1 anna share which originally belonged to Ramdhone that the presumption of correctness in respect of the entries in the settlement records had not been rebutted and that the plaintiff3 had recognized the transfer of the said half anna share to Bashi Nath. Mukerji, J., referred to the finding of the Munsif concurred in by the learned Subordinate Judge, that some of the lands in suit were held exclusively under the one anna share and that some were held jointly under the one anna and 2 1/2 annas shares and proceeded to observe as follows:

Then it has been urged that if the finding on Issue 6 be as above, than the owners of the 2 1/2 annas hisya are necessary parties to the suit, as the learned Munsif had held. It has been contended that the declaration which the plaintiff has asked for as regards the non-existence of the incumbrances will affect the said owners and such a declaration cannot be obtained in their absence. But on reading the schedule to the plaint I find that the plaintiffs have confined their prayers for relief to such share in the lands as they themselves have. However much it may be said to have been convenient if the plaintiffs had made those owners parties, it cannot be held that the said owners were necessary parties in the sense that the suit could not proceed in their absence.

Lastly, it has been contended that the prayer for assessment of rent in the ab3enoe of the said owners of the 2 1/2 annas hisya was not maintainable, and in support of this contention a decision of the Patna High Court in Partap Mahton v. Wazirunnissa A.I.R. 1925 Pat. 559, has been cited. That decision was upon a very special case, and in any case, the decision of this Court in the case of Dhanunjoy v. Upendra [1918] 46 I.C. 428 is against the appellants' contention.

6. Mr. Gupta who appeared for the appellants (the defendants tenants) argued that there was no evidence sufficient in law to rebut the entries ire the khatians and that the Subordinate' Judge had given no clear finding that they had been rebutted. On this point however I agree with the learned Judge-in this Court in thinking that the finding of the lower appellate Court is clear enough and that it was open to him on the evidence to negative the existence of the mirash rights claimed by the defendants. Mr. Gupta further contended that the suit as framed were not maintainable in the absence of the owners of the two and half annas share and. that the learned Judge in this Court was in error in thinking that Dhanunjoy's case [1918] 46 I.C. 428, was against; the appellant's contention. He pointed out that although Section 188, Beng. Ten. Act, did not come into play, no case had gone to the1 length of holding that in the absence of the cosharer landlords, a decree for assessment of rent could be made and that in Dhanunjoy's case [1918] 46 I.C. 428, the other cosharer landlords had been made parties. He argued that the present cases were indistinguishable from Pratap's case A.I.R. 1925 Pat. 559 and were covered by it.

7. Before I deal with Mr. Gupta's contentions, I desire to clear the ground as regards one matter. The finding of fact-being that the defendants have no mirash right and that some lands are held exclusively under the anna share there is no valid reason why the plaintiffs should not get assessment of rent in respect of those lands. There is nothing to show that the tenancy of the defendants or any set of them in the separate and joint lands is held as a single unit. No rent having ever been assessed before there is no question of their holdings being at an entire rent. In these circumstances it seems to me that there should be a decree for assessment of rent in respect of these lands; I can see nothing in the records before me which can disentitle the plaintiffs to this modicum of relief.

8. Now it appears from an examination of the khatians that each set of defendants has set up one mirash in respect of the lands held by them. In view of the findings of fact arrived at by the learned Subordinate Judge to the effect that the defendant's lands comprise land held jointly under the one anna and 2 1/2 annas share, we have to see whether the plaintiffs can get the declaration which they seek and can get the joint lands assessed to rent in the absence from the records of these suits of the owners of the said 2 1/2 annas share? On the latter question the learned Judge in this Court has relied on Dhanunjoy's case [1918] 46 I.C. 428, but in that case the cosharer landlords had been made parties. They were not indeed in the category of plaintiffs but they were in the category of defendants. The case seems to be quite consistent with the decision in Partap's case A.I.R. 1925 Pat. 559, which really followed it Adami, J., who delivered the judgment of the Court went at length into the various authorities and observed as follows:

The question next arises whether, under the general law, a suit by a cosharer landlord for an assessment of the rent of a tenant's holding is maintainable where the other co-sharers have not been made parties either as plaintiffs or defendants. It is to be noticed that in the various oases noted above, except in the case of Govind Chandra Pal v. Hamidulla Bhuiyan [1903] 7 C.W.N. 670, the other cosharers were made parties defendants to the suit for assessment; in the present case the plaintiffs have not made their cosharers parties to the suit at all and the plaint tells us that the cosharers refused to take any action: they are apparently satisfied with the rent now paid to them in accordance with the Record-of-Rights. Two of the cosharers come forward and ask for an assessment of the rent of the 22 bighas and for their proportionate shaie; the other cosharers are vitally interested. It may be that it was unnecessary to join the other cosharers as plaintiffs as Section 188 does not apply, but surely they should have been made parties defendants, so that the assessment when made might bind all equally. As pointed out by the learned Munsif, great hardship will be caused to the tenants defendants if each of the other cosharer landlords is left free to bring a separate suit for assessment; not only may there ensue a multiplicity of suits but also the tenant, if different assessments are made in the separated suits, will be uncertain as to what is really the assessed rental. No really effective decree can be made in the absence of the interested cosharers and there can be no finality as to what is really the fair and equitable rent as in a partition suit so in a suit for asesssment all the interested persons should be made parties.

9. These observations appear to me to be sound in principle and in my judgment any departure from the rule laid down must be in practice inconvenient and liable to produce anomaly and difficulty.

10. The Sub-Judge dealt with this matter by saying:

It is true that some plots of one anna hisya are joint with land of the two annas hisya, but a tenure may consist of undivided shares of lands and that fact does not afford any ground for adding the owners of the other shares as parties.

11. Dr. Basak for the respondents before us argued on the same lines. The question however is not what a tenure may consist of, but what in fact the tenancies of these defendants are. Their mirash right having been negatived there is neither evidence nor finding that they are tenure-holders at all. It may not legally be absolutely impossible, even if these tenancies are only ryotis that the joint lands have been let to them for cultivation as to one undivided share by one patnidar and as to another such share by another patnidar; c.f. Govind's case [1903] 7 C.W.N. 670. It would however be a very improbable inference of fact in the present case where no kabuliyats have been produced and there has not been an assessment of rent. The claim to mirash right was laid on very different lines and the Record-of-Rights was also to the contrary.

12. Hence in my judgment the plaintiffs cannot in these suits get a decree for assessment of rent of the plots which have the two patnis as joint landlords.

13. As to the prayer for a declaration 'that the defendants have got not mirash or permanent right in the disputed lands': It is quite true as the learned Judge observes that the plaint has been so framed as to confine this prayer 'to such share in the lands a3 they themselves have'. As regards those plots which are entirely within the plaintiff's patni the declaration may stand, but if A and B are joint landlords of a plot held by G and C has been recorded in the Record-of-Rights as holding a tenure under both of them as joint landlords, a declaration that C has riot the right he claims should prima facie be refused to A unless B has been impleaded. The fact that A and B hold their interest in defined shares is not of itself any reason for proceeding in the absence of B. The greatest caution must be exercised in granting declarations whether these be granted as substantive relief under the Specific Relief Act or are merely ancillary to or explanatory of other relief. The absence of a party whose presence is necessary to quiet the real dispute (in this case to settle the nature and terms of the defandants' tenancies vender their joint landlords) is a good reason for refusing this form of relief. On the other hand if, as here, the plaintiff proves that the defendants hold certain lands under himself alone then, though they may set up title in fifty other people the plaintiff may clear his title as against the defendants in a suit against them alone.

14. The plaints contained a prayer for back rents or compensation for use and occupation. This does not appear to have been canvassed in any of the Courts, and I do not understand that it as persisted in.

15. The result is in my judgment that these appeals fail in respect of so much of the lands as are held exclusively under the 1 anna, share and must be allowed in respect of the lands held jointly under the 1 anna and 2 1/2 annas shares. It may be that the learned advocates on either side will be able to agree or to satisfy us as to the consequences of this decision in each of these suits so as to enable a decree to be finally drawn up here: We will adjourned the case for a fortnight for this purpose. Otherwise we will have to remand the case in order that a decree may be settled or worked out in accordance with our decision. As to costs assuming that in each suit there are some separate lands in respect of which the plaintiffs are entitled to relief, we think that the plaintiffs should get their co3ts according to their success in the trial Court and in the lower appellate Court, but that the defendants should have their costs of the second appeal and before us. If in any suit the plaintiffs wholly fail the defendants must have their costs of that suit throughout.

C.C. Ghose, J.

16. I agree.


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