SUNDAR PANDIT Vs. MAHADEO PRASAD

JUDGEMENT

(1.) This is a Letters Patent appeal from the decision of Dhavle, J. in a second appeal arising out of a suit instituted by the plaintiff-appellant for a declaration that the decree passed in a certain rent suit was not a rent decree and that the proceedings taken in execution of that decree did not affect the holding on possession of the plaintiff as a usufructuary mortgagee.

(2.) It appears that defendant 1 is the landlord of Mauza Dulahi. In this mauza there was a holding of 117 bighas 2 kathas 16 dhurs bearing a rental of Rs. 281- 14-3 per year including cess. Defendant 1 who owned an eight annas share in the village brought a suit for rent in respect of his share of the rent due and framed it under Section 148A, Ben. Ten Act, making his other cosharers pro forma defendants. The plaint of the suit is Ex. 5, and in para. 3 of the plaint it was alleged that the original holding consisted of 117 big has odd with a rental of Rs. 281-14-3; but at the end of the plaint there is a statement showing that out of the total area defendant 1 was in possession of 94 bighas 4 kathas 5 dhurs and defendants 2 to 5 were in possession of 22 bighas 18 kathas 10 dhurs. The plaint also gave an account of the dues from these two sets of defendants, according to which defendant 1 owed Rs. 566-15-6 and defendants 2 to 5 owed Rs. 34-8-0. These figures were arrived at on the basis that the rental of 94 bighas odd which was in possession of defendant 1 was Rs. 226-11-0 and that of 22 bighas odd which was in possession of defendants 2 to 5 was Rs. 55-3-3. At the end of the plaint it was stated that: If there be some difficulty in passing a decree for the entire arrears of rent jointly against all the principal defendants, then separate decrees may be passed against defendant 1 and defendants 2 to 5 to the extent of their liability according to the account given in the plaint but so as to make the rent decree effective under the Tenancy Act against both sets of defendants.

(3.) It appears that at the trial of the suit the pleader appearing for the plaintiff- landlord did not dispute that the two sets of defendants were separately liable for the amounts shown to be due against them respectively in the account given by him in the plaint, and the learned Munsif, on examining the kabuliyat under which the land was held, came to the conclusion that the liability of the two sets of defendants was separate. In this view the suit was decreed on contest against defendants 2 to 5 of the rent suit and ex parte against the other set of defendants who did not appear to contest the suit.