ABDUL BARI MIA Vs. RAM CHANDRA MAJUMDAR

JUDGEMENT

(1.) THESE two appeals have arisen out of two suits for recovery of arrears of rent in respect of the plaintiffs ten annas share in two howlas for the years 1330 to 1333 B.S. The suits have been decreed for the amount claimed. In these appeals it is urged that as there has been diluvion of portions of the holdings, the defendants are entitled to abatement of rent. It is urged that the case of Rishee Case Law V/s. Golam Ali which was followed by the learned Subordinate Judge was not binding upon the appellants, inasmuch as it can be distinguished from the present suit. The point that arises in these appeals is whether inasmuch as it has been found that all the tenants were not impleaded, a plea of abatement can be put forward by the tenants who are on the record. The case referred to was one under the Bengal Tenancy Act, whereas he present cases being cases brought by some of the landlords, against tenants cosharers only, they are not under the Bengal Tenancy Act, and therefore Section 52 of the Act has no application. But it was held in that case that even if the general law applies, the cosharer tenants are not entitled to any abatement, as the principles laid down in the case of Bhupendra Narain Dutt V/s. Ramon Krishna Dutt (1900) 27 Cal 417 are still applicable. The case of Kesho Prasad Singh V/s. Ram Deni Singh AIR 1923 Pat 397 was also referred to. The principle on which these decisions are based is that where two or more persons have a joint right to land, they cannot assert it except jointly. Both these cases referred to Section 188, Ben. Ten. Act, and it was argued here that Section 188 was enacted in order to protect the tenants and the considerations of that kind do not apply to a case like the present where tenants are seeking remission on account of abatement.

(2.) BUT there can be no doubt that the principle is still applicable. It is certainly advisable that where a joint right is claimed by joint tenants, they should all be made parties to the suit, otherwise there is likely to be an additional litigation and confusion in respect of the rights of the tenants, so that although the decisions in the cases which have been relied upon are not binding inasmuch as they were cases under the Bengal Tenancy Act, I think the Court below is right in deciding that the claim of abatement cannot be established in the absence of all the tenants as parties. The new Section 38(C), Ben. Ten. Act, has been referred to. BUT that relates to raiyati holdings and moreover it refers to a suit which has been properly framed which may very well mean that all the co-tenants should be made parties. In the case of Khettermani Dasi V/s. Jiban Krishna Kundoo (1915) 28 IC 510 that has been referred to in support of this appeal lit was held that Section 188, Ben. Ten. Act, cannot be applied by analogy to a cosharer tenant who brings a suit authorized by the Act. BUT this decision appears to have been arrived at without reference to the principle referred to above and has not been followed in a later decision in Rishee Case Law's case already referred to. These appeals are dismissed. I make no order as to costs.