1. This is a second appeal in a suit brought by the plaintiff-respondent to recover an 8-annas share of rent at an annual rental of Rs. 5-10. With regard to the jama, the plea was that the rental was Rs. 4-6.
2. The first Court dismissed the suit on the ground that the provisions of Section 60 of the Bengal Tenancy Act were not quite applicable to the present case. In appeal, the Subordinate Judge has applied Section 60, and he has given effect to the plea as to the jama and awarded the plaintiff a decree for rent at the rate of Rs. 2-3 only.
3. In second appeal it has been argued that Section 60 of the Bengal Tenancy Act does not cover the present facts, that the plaintiff never realized any rent or paid Government revenue in respect of this mahal, wherein the tenancy is situated, and that in virtue of some agreement the tenancy fell to the share of the defendant No. 3, the appellant before us.
4. We have listened to an interesting discussion at the Bar upon some reported cases on Section 60. Reliance is placed, by the learned Vakil for the appellant, on the case of Durga Das Hazra v. Samash Akon V. That case however, was distinguished by Mr. Justice Geidt in Sadhu Charan Pal v. Radhiha Mohan Roy 8 C.W.N. 695 where that learned Judge says that in the earlier case the plaintiffs were out of possession of the land for which they claimed rent. In. that consideration, the rule that commended itself to Norris and Gordon, JJ., could not be applied.
5. The facts of the present case are quite clear and the plaintiff has been rightly held to be entitled to recover rent. The tenancy i8 within the 5-annas 4-pies share of a certain mahal and within one and the same mouzah. The plaintiff has his name registered in respect of a 2-annas 8-pies share, whereas the moiety share of the defendant No. 3 is represented by Moheswari, the mother of that defendant. The Subordinate Judge has found that the plaintiff has collected rent separately in respect of the 8-annas share, and that the mere fact that he has his name registered will entitle him, under Section 60, to recover his share of the rent. It has been repeatedly pointed out that the provisions of Section 60 are extremely stringent, and, as was explained by Geidt, J., in Sadhu Charan Pal v. Radhika Mohan Roy 8 C.W.N. 695 it does not signify whether the plaintiff is the proprietor or whether the defendant is the proprietor.
6. It is not necessary, therefore, to show that the plaintiff is the real proprietor of the estate, nor is there any such finding in the lower Appellate Court that, in virtue of some private arrangement, the plaintiff agreed not to realise rent from the present tenants and that the defendant No. 3 alone is entitled to do so on the basis of his kabuliat of 1831. The object of the Section is the speedy recovery of rent by the person who registers himself on the Collector's books.
7. The decision of the Subordinate Judge, therefore, must De sustained and this appeal dismissed with costs.
8. I agree generally with the judgment that has been delivered by my learned colleague.
9. As pointed out by Mr. Justice Geidt in the very similar case of Sadhu Charan Pal v. Radhika Mohan Roy 8 C.W.N. 695 the case of Durga Das Hazra v. Samash Akon 4 C.W.N. 606 can be distinguished inasmuch as in that case the plaintiffs were out of possession; whereas this has not been found in the present ease. But with the greatest respect, I desire to guard myself from being supposed to hold in consonance with the decision in Durga Das Hazra v. Samash Akon 4 C.W.N. 606 that, if the plaintiffs were out of possession, the defendant would be entitled to resist his claim to recover rent with respect to the interest for which the plaintiff was properly registered.