1. This appeal is by the defendants in a suit under Section 105, Ben. Ten. Act, for settlement of rent in respect of the land held by the defendants under the plaintiff. The lands in suit have been recorded in C.S. Khatian No. 201 of the finally published record of Mouza Tala, J. L. No. 61 of P.S. Arambagh. The defendants have been recorded therein as tenure-holders under the plaintiff in respect of these lands and the tenure has been recorded as liable to be assessed to rent. The C. Section record was finally published on 16th March 1936 and the plain, tiff Sir Bejoy Chand Mahtab G.C. I.E.K.G.S.I.I.O.M., instituted the present suit on 11th July 1936 under Section 105, Ben. Ten. Act, for the settlement of rent in respect of the tenure. The defendants appeared and contested the claim saying that the lands constituted their niskar holding and that these were wrongly recorded as liable to be assessed to rent under the plaintiff. The Assistant Settlement Officer who heard the case decreed plaintiff's claim and settled Rs. 121-4-0 to be the fair and equitable rent in respect of the defendants' tenure recorded in Khatian No. 201 as aforesaid. He directed that the new rent would come into effect from the beginning of the next agricultural year, i.e., from the middle of April 1938.
2. The Assistant Settlement. Officer based his decision on the following considerations: (1) That the finally published record of rights raised a presumption in favour of the plaintiff; the onus lay on the defendants to prove that the lands in question were the niskar property of the defendants; (2)(a) That in support of the defendants' case they relied on Exs. A to z, A/A and A/H; and on the oral evidence of D.w. 1. (b) That the evidence adduced did not establish the niskar right claimed by the defendants. The defendands preferred an appeal against this decision and the special Judge who heard this appeal allowed the defendants to adduce further evidence at the appellate stage and arrived at the following conclusions: (1) That the C. Section Plots 21, 32, 16, 75, 96, 87, 88, 71 and 73 of the Khatian No. 201 are not in possession of the defendants, these having been purchased by the plaintiff himself at an auction sale; that the defendants are no longer liable to pay rent in respect of these plots; (2) That the defendants failed to establish their niskar right; (8) That the Assistant Settlement Officer was right in negativing the contention of the defendants appellants that the lands in suit were niskar.
3. The learned special Judge therefore affirmed the decision of the Assistant Settlement Officer that the tenancy was not a niskar one and that it was liable to assessment of rent, but set aside the decree so far as it settled the amount of rent and settled it from the next agricultural year and remanded the case to the Assistant Settlement Officer with a direction to grant a proportionate reduction of rent in respect of the lands found by the learned special Judge as no longer in the possession of the defendants and thus to settle the fair and equitable rent for the remaining plots. Against this decision, the present appeal was preferred by the defendants on 9th December 1938. In the memo of appeal, the plaintiff was the sole respondent. No appeal or cross-objection was filed by the plaintiff. During the pendency of this appeal, the plaintiff Maharaja granted a patni to Panchanan Palit on 27th April 1939. This patni included the suit lands also. The putnidar applied for being added as a party respondent to this appeal under Order 22, Rule 10, Civil P.C., and he was so added on 22nd July 1940, as respondent 2, the plaintiff Maharaja being retained as respondent l. Thereafter, the original plaintiff respondent died on 29th August 1941 and no substitution was made in his place. It is contended by the surviving respondent that in the result the appeal abated as against the Maharaja. A preliminary objection has been taken to the hearing of the appeal on the ground that the appeal having abated as against the deceased plaintiff-respondent, it has become incompetent as against the added respondent also. Order 22, Rule 4, read with Rule 11, Civil P.C., is the appropriate provision. Rule 4 runs as follows:
(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2)... (3) Where within the time limited by law no application is made under Sub-rule (1) the suit shall abate as against the deceased defendant. (4)...
4. Rule 11 says:
In the application of this order to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent, and the word 'suit' an appeal.
5. At the date of the death of the plaintiff there were two respondents and one of them died. The question is - Whether the right to appeal did or did not survive against the surviving respondent alone. If it did survive against the surviving respondent alone then no substitution of the legal representative of the deceased respondent would be warranted by Rule 4 of Order 22. Order 22, Rule 2 would apply to such a case and no question of abatement would arise. If it did not so survive, but the right to appeal survived the deceased respondent, then the legal representative of the deceased respondent would have been substituted; that not having been done in time, the appeal would abate as against the deceased plaintiff and then the further question would arise how far this abatement would affect the appeal against the surviving respondent. The effect of the partial abatement on the whole appeal in such a case will depend upon the nature of the appeal. If, on account of the partial abatement, it becomes, for any reason, impossible to proceed with the appeal to its final conclusion, the entire appeal will fail. This will happen, for example, in an appeal against a decree for partition, when one of the cosharer respondents dies and his heirs are not impleaded in time. No decree for partition can be made in the absence of even a single cosharer.
6. The impossibility in question may arise from the suit or appeal; (1) becoming imperfectly constituted for want of necessary or essential parties, or (2) from the undesirable possibility of having two inconsistent or contradictory decrees in one and the same suit, or (3) from the futility of proceeding further in a suit or appeal in which the decree, if given, cannot be effectually executed by reason of the outstanding right of the legal representative of the deceased : Md. wajid ali Khan v. Puran Singh ('29) 16 A.I.R. 1929 P.C. 58.
7. If, however, the appeal can proceed to a final adjudication in the absence of the legal representatives of the deceased respondent, the partial abatement will not affect the rest of the appeal. Such a final adjudication is possible, for example, in cases where the interest of the deceased respondent can be separated from that of the surviving respondents. In such a case a decree can be given against the surviving respondent without affecting the rights of the legal representative of the former. In a suit the effect of the partial abatement will depend upon the relief involved in it. In an appeal however the effect will have to be determined not upon the nature of the relief involved in the suit but upon the nature of the relief awarded by the decree appealed from. The question therefore is whether the appeal abated even partially and if so, whether the abatement of the appeal against the deceased plaintiff makes it impossible to proceed effectively with the hearing of the appeal as against the added respondent - whether the judgment and decree in this appeal passed in the absence of the legal representatives of the plaintiff would be rendered a complete nullity and a brutum fulmen.
8. The suit was one under Section 105, Ben. Ten. Act. Either the tenant or the landlord can proceed under this section. At the date of the institution of the suit, the Maharaja of Burdwan was the landlord in respect of the defendants' tenancy and it was he who instituted the suit. The suit as instituted by the Maharaja was only for the settlement of rent. In such a proceeding, it was competent for the tenant to raise the issue whether the land was or was not liable to the payment of rent under Section 105A of the Act, with out instituting a separate suit for the purpose under Section 105 of the Act. The word landlord is defined in Section 3(6) of the Act to mean 'a person immediately under whom a tenant holds.' At the date of the institution of the suit, the Maharaja of Burdwan was the landlord within the meaning of this definition. As soon as the putni in favour of the added respondent was created on 27th April 1939, it : was the added respondent who became the landlord in respect of the defendants' tenancy and the Maharaja of Burdwan ceased to be the landlord. Thenceforward the Maharaja became the superior landlord. The explanation added to Section 105(1) of the Act shows that even such a superior landlord can institute a proceeding under the section notwithstanding that his estate or tenure or part thereof has been temporarily leased. But for this explanatory provision, he would not have been competent to institute such a proceeding after leasing out his estate even though such lease was only a temporary one; d because even by such a temporary lease he would have ceased to be the landlord for the time being. It seems clear from this that after giving up the estate in a permanent putni lease the proprietor of the estate ceases to be the landlord of all subordinate tenures and consequently ceases to have the right to institute a proceeding under Section 105 of the Act. The position of the parties after the creation of the putni in this case therefore became as follows: (1) The putni having been created pendente lite the defendants-appellants were entitled to prosecute their appeal as against the plaintiff Maharaja alone ignoring the transfer pendente lite; the transferee pendente lite would have have been bound by the ultimate result of the litigation. (2) The defendants-appellants were entitled also to bring on record the transferee pendente lite under Order 22, Rule 10, Civil P.C., in the place of the Maharaja plaintiff-respondent; (3) Had the proceedings been instituted after the creation of the putni, the Maharaja plaintiff would not have been competent to institute the proceeding under Section 105 of the Act. This shows that the interest of the plaintiff involved in the suit came to or devolved upon the holder of the putni within the meaning of Order 22, Rule 10, C.P.C. (4) The relief awarded by the decree appealed from was that the tenancy was not a rent free one but was liable to assessment of rent; f and this being the nature of the relief involved in the appeal, it was the immediate landlord having permanent interest who was vitally concerned with it, and not the superior landlord who had permanently leased out his interest. In our opinion, therefore, the right to appeal survived the deceased plaintiff and it did survive against the putnidar respondent alone within the meaning of Order 22, Rule 2, C.P.C. We, therefore, hold that the appeal is competent without the legal representative of the deceased Maharaja being brought on the record.
9. Coming, however, to the merits of the appeal, we are of opinion that it is concluded by the findings of fact arrived at by the Court of appeal below. The C.S. record recorded the tenancy of the defendants as liable to be assessed with rent. The learned special Judge held that the defendants failed to rebut the statutory presumption in favour of the landlord arising from this 0. Section record. The learned Advocate appearing in support of the appeal contends that as the tenancy in question comprises undivided shares in certain plots of lands and as the tenancies in respect of the other undivided shares in these very plots have been recorded as 'Nishkar,' it follows that the present tenancy is also a niskar one. We are unable to accept this reasoning. Simply because the tenancies in respect of other shares have been recorded as 'Niskar,' it does not follow that they are aa a matter of fact niskar of course the presumption is that these entries are correct. But we do not see how these entries will at all be relevant for the purpose of proving the character of the defendants' tenancy. Even assuming that the tenancies in respect of the other shares are niskar, it does not follow that the tenancy in question must also be niskar. It has not even been established that all these tenancies at any time formed one tenancy. In any case the learned special Judge took all these entries also into consideration in arriving at the conclusion that the present tenancy had not been proved to be rent free, and we do not see how we can interfere with that finding based as it is on evidence.
10. It is not disputed that the land in question lies within the revenue paying Mahal of the plaintiff. Prima facie, the defendants who hold it under the plaintiff would be under an obligation to pay rent for it. It lies upon him who claims to hold such land free of the obligation to pay rent to show by satisfactory evidence that he has been relieved of this obligation : Jagdeo Narain Singh v. Baldeo Singh ('22) 9 A.I.R. 1922 P.C. 272. Here, to add to this, the entry in the C.S. record raises a presumption against the defendants. The onus therefore lies heavily on them to establish the rent free character of the tenancy and the only relevant thing established by them is the factum of long possession without payment of rent. This fact no doubt is a relevant consideration and, it was taken into consideration by the Court below in negativing the defendant's claim. In our opinion, the defendants have hopelessly failed to establish the case set up by them that their tenure is not liable to pay rent. In the result the appeal is dismissed with costs, the hearing-fee being assessed at two gold mohurs.
11. I agree.