BISHUNDEO SINGH Vs. LEYAKAT ALI KHAN

JUDGEMENT

(1.) This is a batch of 18 second appeals arising out of as many rent suits. The plaintiff in those suits had claimed produce rent for the period in suit. The substantial defence was in regard to the rate of" produce, and the defendants also pleaded that they had divided the produce but the landlord had not granted them any receipt and had instituted these suits being annoyed with the fact that the defendants had filed applications under Section 40 of the Bihar Tenancy Act for commutation of rent of their holdings. During the pendency of the suit it appears that these commutation proceedings were decided, and the courts below have decreed the suit on the basis of the commuted rent except in the case of Second Appeal No. 1428 where there was no commutation schedule and where the suit has been decreed in respect of produce rent. So far as this appeal is concerned, it is conceded that there is no question of law at all, and, therefore, that appeal has to be dismissed.

(2.) In regard to the other appeals, the only question raised is that in the written statement there was no specific plea about the rent of the holdings having been commuted, and, therefore, no decree could be passed on the basis of the rent schedules so long as the written statement had not been amended. It is to be remembered that in the written statement the defendants had definitely stated that applications for commutation of rent had been filed by them. The commutation proceedings were pending at the date of the institution of the suits, and before the cases came to be decided, the commutation proceedings had become effective and the rent schedules had been prepared for 'nakdi' rent. The landlord appears to have contested these proceedings, and in his presence the commutation order was passed. Mr. Lalnarayan Sinha appearing on behalf of the appellant states that there may have been certain defects in the commutation proceedings which could not be investigated unless the written statements were amended, and then the court had proceeded to decide the matter afresh after considering the evidence of the plaintiff on the point. It is now too late for him to raise this contention in second appeal. I find that no such question was raised either before the learned Munsif or before the lower appellate court. For the respondents Mr, Akbar Imam has drawn my attention to a decision of this Court in 'DEORAJ SINGH v. RAMBILAS SINGH', AIR 1951 Pat 629 where the commutation orders were actually passed when a second appeal was pending before this Court and the rent schedules prepared in the proceedings under Section 40 of the Bihar Tenancy Act were taken as additional evidence in the case, and the suits were decreed on the basis of those schedules. In dealing with this matter, C. P. Sinha, J. pointed out that in view of the provisions of Order 41, Rule 33, Civil Procedure Code, he had no doubt that the appellate court in finally deciding the case and pronouncing upon the rights of the parties was bound to take notice of the subsequent Section 40 proceedings and the rent commuted therein, and to decree the suit on the basis of the commuted rent. I see no reason why the two courts below could not have passed the decree on the basis of the commutation proceedings in these cases especially when the commutation proceedings were not challenged before either of the courts below. The learned Subordinate Judge who decided the appeals observed that the plaintiff did not challenge the order of the rent commutation officer as being without jurisdiction, and he admitted that he contested the proceedings. The court was, therefore, justified in relying upon the commutation proceeding which was in presence of the plaintiff-landlord and which was binding upon him.

(3.) In my opinion, there is no merit in these appeals which, therefore fail and must be dismissed with costs. There will be only one hearing fee in all these appeals.