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Ahammad Ali and ors. Vs. Bisseswar Mukhoti and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.211
AppellantAhammad Ali and ors.
RespondentBisseswar Mukhoti and ors.
Cases Referred and of Gobind Chandra Pal v. Hamidulla Bhuian
Excerpt:
bengal tenancy act (viii of 1885), sections 52 and 188 - co-sharer landlord, suit by, for additional rent, when maintainable. - .....by a co-sharer landlord for rent and also for additional rent, under a kabuliat dated prior to the bengal tenancy act. the co-sharer landlords were made parties and the prayer was to have rent, enhanced at the rate agreed upon in the kabuliat for the land as found by measurement under chapter x of the bengal tenancy act. one of the pleas of the defendant was that the suit was not maintainable by the plaintiff alone by reason of the provisions of section 188 of the bengal tenancy act. the court gave effect to this plea and dismissed the suit. the court of appeal below, however, has upset the decree of the first court and decreed the suit, holding that the suit was maintainable. the point raised in second appeal before us is whether the suit as framed is maintainable and the case has been.....
Judgment:

1. The suit out of which this appeal arises was brought by a co-sharer landlord for rent and also for additional rent, under a kabuliat dated prior to the Bengal Tenancy Act. The co-sharer landlords were made parties and the prayer was to have rent, enhanced at the rate agreed upon in the kabuliat for the land as found by measurement under Chapter X of the Bengal Tenancy Act. One of the pleas of the defendant was that the suit was not maintainable by the plaintiff alone by reason of the provisions of Section 188 of the Bengal Tenancy Act. The Court gave effect to this plea and dismissed the suit. The Court of Appeal below, however, has upset the decree of the first Court and decreed the suit, holding that the suit was maintainable. The point raised in second appeal before us is whether the suit as framed is maintainable and the case has been argued threadbare by the learned Vakils who appeared for the parties and we are very much obliged to them for the light they have thrown upon the points. It appears, however, at the outset that the kabuliat, which is the basis of the suit in this case, was not only one dated prior to the Bengal Tenancy Act, bat it makes a clear provision for the different co-sharers being entitled to bring suits either jointly or separately for their shares and also for payment of rent either jointly or separately. If the rate of rent is fixed by a contract and if the measurement contemplated has been made, nothing more is to be done than to make an arithmetical calculation of the rent that should be allocated to the area found. We do not think that the landlords or the tenants are under the necessity of calling in the aid of the provisions of Section 52 of the Bengal Tenancy Act. The contract is complete in itself and if the contract is complete in itself and the provisions of Section 52 of the Bengal Tenancy Act are not required for helping either of the parties, then whether Section 188 of the Bengal Tenancy Act does or does not apply to a case under Section 52, the present suit is free from the difficulties that might arise in those matters and is to be tried on the basis of the contract. A large number of cases, some with diverging opinions, have been referred to. The only case that has some semblance of being in support of the appellant is the case of Darik Dhakari v. Aswini Kunwar Nag (3). That was, however, a case upon a kabuliat subsequent to the Bengal Tenancy Act and was distinguished from a prior case in the judgment of that very case on that ground. That case may also be distinguished on the ground that the kabuliat did not say what was to be assessed for any additional lands found on measurement. It is not necessary, therefore, to consider that case at any length. All that we need say is that so far as this case is concerned, we do not feel much pressed by it. The other cases which were relied upon are also distinguishable. The case of Gopal Chunder Das v. Umesh Narain Chowdhry (4) was a case both under Section 30 and Section 52 of the Bengal Tenancy Act, so that at least as to the case under Section 80, Section 188 was applicable. Besides it was not a case based upon any contract between the parties. Then the case of Baidya Nath De Sarkar v. Ilim (5) on the face of it does seem to favour the contention of the appellant and upon reading the judgment we find that the learned Judges who decided that case construed the kabuliat in that case as making no provision for the assessment of increased rent as asked for by the plaintiffs. Then reference was made to the case of Jatindra Nath v. Prasanna Kumar Banerji (1). But that was a case under Section 30 of the Bengal Tenancy Act and we are unable to read any part of that case helping the appellant in his argument in this case. The cases of Dintarini Dasi v. Broughton (6) and of Gobind Chandra Pal v. Hamidulla Bhuian (8) do seem to support the contention of the respondents and we think that apart from any of these considerations, the case as framed is maintainable by the plaintiff on the contract and in this view of the case we dismiss the appeal with costs.


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