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Dhakeshwar Prosad NaraIn Singh Alias Harihar Prosad NaraIn Singh Vs. Iswardhari Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal759(2),30Ind.Cas.862a
AppellantDhakeshwar Prosad NaraIn Singh Alias Harihar Prosad NaraIn Singh
Respondentiswardhari Singh and ors.
Cases ReferredChedi Lal v. Kirath Chand
Excerpt:
court fees act (vii of 1870), section 28 - suit for declaration--correction of rent entry in settlement record--rent payable by defendants varying according to their castes and occupations--power of revenue officer in revision to direct payment of court-fee--bengal tenancy act (viii of 1885), sections 104, 105a, 106, 107, 108. - .....suits were brought against such persons any common question of law or fact would arise.' the suit instituted by the plaintiff was for a declaration to the effect that the entry in the furd rewaz that the proprietor's share is 20 seers and the tenants' share w 20 seers in the maund was wrong, and in lieu thereof it be declared that after deduction of costs, the proprietor's share is realised at the rate of 21 seers a maund from the rajput mahtawars, 2 1/2 seers from the kurmi mahtawars, 20 seers from the amlas, 22 1/2 seers from the ordinary tenants, and 22 seers from the rajput tenants, besides cesess. as the defendants belong to different castes and follow different occupations, the rents payable by the defendants would be different, and although in the khatian the rent payable is.....
Judgment:

1. This appeal arises out of a suit under Section 106 of the Bengal Tenancy Act. The plaintiff-appellant is the landlord, and realises produce rents from about 130 raiyats. In the Record of Rights of the village, it was recorded that half the produce of the land is paid as rent to the landlord. The further incidents of the system of produce-rent were recorded in full in a separate khatian, called the furd rewaz bhowli, to which reference was made in the khatian of each tenant. The plaintiff thereupon instituted the suit against all the tenants in a body upon one plaint with a Court-fee of Rs. 10 only, for a declaration that the rates of rent payable by the tenants varied according to the occupation and caste to which they belonged (the rates varying from 20 seers to 22 1/2 seers in a maund). The tenants entered into compromise with the plaintiff and the Assistant Settlement Officer made a decree according to the compromise. The matter came up before the Settlement Officer, who by his order dated the 15th September 1911, upheld the compromise and the decree passed by the Assistant Settlement Officer.

2. Subsequently it appears that the Settlement Officer acting under Section 108 of the Bengal Tenancy Act, by his order dated the 30th November 1911, held that the plaintiff ought to have instituted a separate suit against each tenant claiming to have both his khatian and the furd rewaz bhowli corrected and should have paid separate Court-fees on each, and that even if by consent of parties the suits are tried jointly he should pay the same Court-fee as if he had instituted a suit against each raiyat. The Settlement Officer accordingly set aside the order allowing the suit and directed the plaintiff to pay additional Court-fees to the value of Rs. 1,290 within a certain time.

3. On appeal by the plaintiff, the learned Special Judge upheld the order of the Settlement Officer, and the plaintiff has appealed to this Court.

4. It is contended on behalf of the appellant that the order, purported to be made under Section 108 of the Bengal Tenancy Act by the Settlement Officer, could not be properly made under that section.

5. Under Section 108 of the Bengal Tenancy Act, a Revenue Officer specially empowered by the Local Government in this behalf has the power of revising any order or decision passed under Sections 105, 105A, 106 or 107 made by himself or any other Revenue Officer. This power is not restricted to revision of the decision or order on the merits, and we are unable to hold that the Revenue Officer's order under Section 108 was unauthorised.

6. The next question is, what is the Court-fee payable on the plaint. It was contended that under Order I, Rule 3, all the defendants could be joined in one suit. That rule runs as follows: 'All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.' The suit instituted by the plaintiff was for a declaration to the effect that the entry in the furd rewaz that the proprietor's share is 20 seers and the tenants' share W 20 seers in the maund was wrong, and in lieu thereof it be declared that after deduction of costs, the proprietor's share is realised at the rate of 21 seers a maund from the Rajput Mahtawars, 2 1/2 seers from the Kurmi Mahtawars, 20 seers from the amlas, 22 1/2 seers from the ordinary tenants, and 22 seers from the Rajput tenants, besides cesess. As the defendants belong to different castes and follow different occupations, the rents payable by the defendants would be different, and although in the khatian the rent payable is stated to be one-half, the furd rewaz, if the plaintiff's prayer were granted, would show different rents payable by different tenants and the rent-note appended to each khatian will have to be altered. One suit, however, might be instituted against such of the tenants as belong to the same caste or follow the same occupation. For instance, the plaintiff alleged that the Rajput Mahtawars pay rent at rate of 21 seers. If there are ten such tenants, we think one suit might have been brought against the ten tenants with a Court-fee of ten rupees, because the same declaration would have to be made with respect to all the said ten tenants. We are of opinion, therefore, that a separate suit ought to have been instituted with respect to each class of tenants as indicated above. Only one suit appears to have been instituted against all the tenant jointly apparently without any objection on the part of the tenants who compromised the case with the plaintiff, and the Revenue Officer did not insist upon the presentation of a separate plaint in each case, but directed the plaintiff to pay a Court-fee of Rs. 10 as in a separate case against each tenant. In the view we have taken a separate Court-fee should have been paid for each class of tenants as stated above.

7. The last question is, whether the Revenue Officer had any power to direct the payment of Court-fee in revision when no objection -was raised as to the same in the Court of first instance. We are of opinion that he had the power under Section 28 of the Court Fees Act to order that the plaint be properly stamped. In the case of Chedi Lal v. Kirath Chand 2 A. 682 the plaint in a suit bore insufficient Court-fee. In second appeal it was held by the Full Bench that if a document which ought to bear a stamp under the Court Fees Act has been used in the High Court, and the mistake or inadvertence which permitted its reception in a lower Court without being properly stamped comes to light in the High Court, any Judge of that Court may under Section 28 of the Court Fees Act direct that it should be properly stamped. Following the principle of that decision we hold that the Revenue Officer had the power to order the plaint to be properly stamped.

8. The order of the Special Judge and the order of the Revenue Officer, dated the 30th November 1911, are accordingly modified as indicated above. If the Court-fee as indicated above be not paid on or before the 1st September 1914, the suit will stand dismissed. If the Court-fee be paid within the time aforesaid, the compromise decree passed by the Assistant Settlement Officer will stand confirmed. We make no order as to costs of this appeal. Let the record be sent down at once.


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