BATUL BEGAM Vs. B HEM CHANDAR MUKHERJI

JUDGEMENT

(1.) This is a defendants' appeal arising out of a suit for arrears of rent under Section 148 of the U. P. Tenancy Act. The suit was filed by one of the co-sharers only, i.e. Hem Chandra Mukerji, against Mst. Batool Begum for recovery of arrears of rent in respect of three plots detailed in the plaint. The plaintiff alleged that the plots were the exproprietary tenancy of the defendant, who had Rot possession over the plots after the death of her husband Fida Husain, who was the original sir-holder of the plots.

(2.) The defendant contested the suit and one of her pleas in defence was that the suit could not be decreed, inasmuch as, an area of 83 bighas of Sir appertained to a -/5/2 share of the proprietary interest owned by her predecessor, and that as such she had acquired exproprietary rights in the village and the entire exproprietary tenancy had thereafter became her sir. She further pleaded that the suit was bad for non-joinder of all the co-sharers as required by the provisions of Section 240 of the U. P. Tenancy Act. At a preliminary stage in the trial of the suit it was decided between the parties that the defendant was an exrtroprietary tenant in Khata No. 1 only, which comprised of 47 bighas 14 biswas, while in respect of Khatas Nos. 2 and 3 which comprised of 3 bighas 1 biswa and 5 bighas 5 biswas 12 dhurs respectively she had become a sir-holder and there-fore was not liable to pay any rent to the plaintiff The suit was dismissed by the trial court on a finding that the suit was bad for non-joinder of not only causes of action but also of necessary parties.

(3.) An appeal was preferred by the plaintiff and the lower appellate Court allowed the appeal and granted the plaintiff a decree for the recovery of Rs. 355/5/- as rent in respect of khata No. 1. It also allowed Rs. 39/7/- on account of interest, the total decree granted in plaintiff's favour being Rs. 394/12/-. Future and pendente life interests were allowed at 3 per cent per annum. The parties were directed to bear their own costs throughout, in proportion to their success and failure,