RAMLAIK RAI Vs. RAJBALLAM RAI

JUDGEMENT

(1.) Those are applications in revision against the rejection of two applications under Order 21, Rule 100, Civil P.C. The decree-holder and one of the members of the opposite party compromised, but one of the latter denied the compromise. The latter in addition objected that the applications were not tenable. The Munsif gave effect to this objection and referred the applicants to a suit. The petitioners in application No. 568 are rehandars of a small area, in possession since 1899. The petitioners in No. 569 are private purchasers of 4 bighas 13 kathas for Rs. 1,999 on 8 October 1915. The landlord (opposite party third party) brought a rent suit against the original tenant (opposite party second party) without impleading the rehandars or the purchasers and the holding was purchased in 1930 by the opposite party No. 1, who is described as a farzidar of Badri Rai, the rehandar of a portion of the holding. When the possession of the petitioners was disturbed they filed the objections which, as has been said, were rejected by "the Munsif.

(2.) The holding is sharahmoyaian. Accordingly under the provisions of Section 18, Ben. Ten. Act, read with Section 17 and previous sections, either the entire holding or a share in it is transferable. Upon transfer of a share the holding becomes to the extent transferred the transferee's holding within the provisions of Section 65 and accordingly liable to sale in execution of a decree against him for the rent thereof. In order that the decree may be a rent decree of this nature the transferee must obviously be a party. It is useless to rely, as the Munsif does, upon a decision that in order that the decree may be a rent decree a purchaser of a portion of an occupancy holding (which does not appear to have been sharahmoyaian) need not be a party to a rent suit in respect of it. In this case the decree obtained by the landlord was at most a money decree in so far as the petitioners were concerned and Rule 100 applies and the Munsif wrongly declined jurisdiction.

(3.) It was indeed argued that Section 17, Ben. Ten. Act, does not apply since the word "share" occurring therein is continued to a specific share, such as a quarter or a half or so many annas in the rupee of the tenancy. This view is unsound. The word is clearly of general application and inter alia applies when an area of land, for instance, as in the present case, six bighas out of a holding of 6 62 acres, is transferred. It is only a division of the sharahmoyaian holding that the landlord is entitled to ignore. The purchaser becomes his tenant and he cannot get a "rent decree" against him without impleading him in the suit for the rent of his tenancy. The applications are allowed, the decision of the Munsif is set aside and the case remanded to him for disposal according to law. The petitioners are entitled to their costs: pleader's fee in each case Rs. 16.