YESHWANT GOVARDHAN Vs. TOTARAM AVASU

JUDGEMENT

(1.) THIS appeal arises from a suit filed by the plaintiff-appellant to recover from the defendants-respondents a sum of Rs. 2,884-14-0 on account of a lease. The lease was executed under the following circumstances. The lands which are the subject-matter of the lease are three fields bearing survey Nos. 28/1, 30 and 31. These lands are of the ownership of the plaintiff. On 8th February 1946 the plaintiff granted a lease to the defendants for a period of five years at a rent of Rs. 1,100 per year. On 11th April 1946, the Bombay Tenancy Act, 1939, was made applicable to the locality in which the lands are situate. As a result of the operation of Section 23 the lease, though limited to a pe- riod of five years, became a lease for a period of ten years. On 24th January 1947, the defendants surrendered the three lands and possession was given to the plaintiff. An endorsement was made to that effect upon the lease. In 1947-48 the plaintiff cultivated these lands. In 1948, however, the Bombay Tenancy and Agricultural Lands Act, 1948, came into operation and then the third defendant applied to the Mamlatdar, claiming that the surrender was not valid. On 30th April 1948 the application was granted and possession was restored to defendant No. 3. Defendant No. 3 then applied to the Mamlatdar for fixing reasonable rent and the Mamlatdar fixed the reasonable rent at Rs. 600 per year. This order was taken in appeal and the Collector fixed the reasonable rent at Rs. 758 per year. It is not clear from the record as to when the Mamlatdar and the Collector made the respective orders, but the appellate judgment shows that the Mamlatdar made the order before the present suit was filed and that the Collector made the appellate order after the suit was decided by the trial Court. The suit was filed on the 9th March 1951 and the suit ended in a decree on the 13th September 1952.

(2.) WHILE the suit was pending, two purshises were filed. Exhibit 30 was a purshis filed on behalf of the third defendant and the purshis stated that the third defendant had given up all his contentions and that the reasonable rent of the suit lands was a sum of Rs. 1,100, independently of the amount of assessment. The purshis went on to say that the third defendant had given up all his proper contentions under the Tenancy Act. This purshis was filed on the 19th March 1952 and on the same day the plaintiff filed a purshis which, after referring to the giving up of all the contentions by defendant No. 3 and about the third defendant having admitted a sum of Rs. 1,100 being the amount of the reasonable rent, went on to say that the plaintiff wanted to withdraw the suit as against defendant No. 3. Upon these two purshises, the Court did not make any specific order, but a reference to the purshises, which are Exs. 30 and 31 in the case, shows that they were filed before the learned Judge.

(3.) ON 17th June 1952 the plaintiff filed an application, asking that the name of the third defendant should not be deleted from the suit and that the suit should proceed as against him. It may be pointed out that after the two purshises, Exs. 30 and 31, were filed, the learned Judge re-cast the issues and that was on the 19th March 1952. The learned Judge considered the application of the 17th June 1952 and rejected it on the ground that the application was not maintainable and also on the ground that the application was not supportable on merits. The trial Court then proceeded to pass a decree in favour of the plaintiff against defendants Nos. 1 and 2 for a sum of Rs. 103-10-0 with proportionate costs of the suit.