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Sheikh Samdani and anr. Vs. Kamalakant Jha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.424
AppellantSheikh Samdani and anr.
RespondentKamalakant Jha and ors.
Excerpt:
hindu law - mitakshara--joint family--all members minors--certificate of guardianship whether valid--one member of age--whether certificate of guardianship of minor members, valid--bengal cess act (ix of 1880), section 20, schedule a, part i--tenant's name not entered in part i or ii--whether rent suit maintainable. - .....guardianship ceased also as regards the other minors.3. upon the second question, i think that the learned munsif was right and that his judgment should be restored. it has been argued before us that the appellants were not tenants at all. they are, it is said, cultivating the respondents' own nigjote land on the respondents' landlords' behalf, and not for themselves, and that, therefore, the return was strictly accurate and came within part i to schedule a of the bengal cess act, the land being land in the actual occupation and cultivation of the person submitting 'the return.' in short, the contention was that these persons were not raiyats, that is to say, persons cultivating land for themselves, but were labourers working on the. land for the respondents and receiving in return, as.....
Judgment:

Woodroffe, J.

1. These appeals arise out of 15 rent suits; and the judgment now given governs all of them.

2. I am of opinion that the learned District Judge was right in his dealing with the objection relating to the appointment of a guardian of the minors. It is argued that the lower Appellate Court should have held that the plaintiff No. 1 was not competent to institute a suit on behalf of the minor plaintiffs, that the only person who could institute a suit on their behalf was the guardian appointed by the Court, and, that as the minors were alleged to be necessary plaintiffs in the case, the suit was void and should have been dismissed. I think, however, that although the order appointing a guardian of the minors was originally a good order, when one of these minors came of age then the guardianship ceased ipso facto as regards him. As there cannot be a guardian of minors in the case of a joint Mitakshara family in which there are also adults, the guardianship ceased also as regards the other minors.

3. Upon the second question, I think that the learned Munsif was right and that his judgment should be restored. It has been argued before us that the appellants were not tenants at all. They are, it is said, cultivating the respondents' own nigjote land on the respondents' landlords' behalf, and not for themselves, and that, therefore, the return was strictly accurate and came within Part I to Schedule A of the Bengal Cess Act, the land being land in the actual occupation and cultivation of the person submitting 'the return.' In short, the contention was that these persons were not raiyats, that is to say, persons cultivating land for themselves, but were labourers working on the. land for the respondents and receiving in return, as their wages, portion of the produce of their labour. Now, if this were so, then, as the learned Pleader for the appellant has pointed out, the whole of the argument of the lower Courts was thrown away, the case proceeded, in fact, on the assumption that the defendants were tenants and they were sued for rent as such.

4. This, I think, sufficiently appears in the face of the judgments themselves. That conclusion is corroborated by reference to the evidence of the first plaintiff, who described the defendants as ancestral tenants. The return after referring to nigjote, has these words, batai jote raiyat, and there is the khatian, which was filed by the plaintiff, in which it is said the tenants are described as occupancy tenants. Now, evidence was taken in this case, but having regard to the Munsif's findings upon issues Nos. 1 and 2, he did not come to any other finding upon the evidence in the case.

5. We, therefore, must not be understood to determine on this appeal what the exact nature of the appellants' tenancy was. What we do decide is that they were tenants, and not labourers; that is to say, they were persons who were cultivating the lands for themselves. This being so, the return should, in my opinion, have been made under Part IE or Part III, as the case may be, of Schedule A, and not under Part 1, and the names of the raiyats, or tenure-holders, as the case may be, should have been mentioned. There was, therefore, no proper return within the meaning of the Act, and Section 20 is, as the Munsif has found, a bar to the suit.

6. It has been argued that even if the appellants were tenants, they were such tenants of land, which, according to the respondents' argument, was nigjote, or zerait land and that such land, whether it is in the actual occupation or cultivation of the landlord, or is let out to tenants, comes under, and should.* be entered under, Part I. In support of this construction, reliance is put upon the note appended to that Part, But this note must be read subject to what precedes it in the first part and to the provisions of Part II and III, and the preceding words of Part I show that the details of the lands, which are to be entered in that part, are lands in the actual occupation and cultivation of the persons submitting returns. If the land is held either by cultivating raiyats or by tenure-holders, paying, in either case, to the person submitting the return, then the return should be in the form of Part II and III to Schedule A.

7. For these reasons, I am of opinion that the decisions of the learned District Judge on this latter point with which I have dealt is wrong; and I would reverse his judgment and restore the judgment and decree of the Munsif with costs in all the Courts, the hearing fee in this Court being fixed at one gold mohur in each of the appeals.

Richardson, J.

8. I agree.


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