GIRWAR NARAYAN MAHTON Vs. KAMLA PRASAD

JUDGEMENT

(1.) These two second appeals are by the same plaintiffs and arise out of two rent suits against two different sets of defendants, which though decreed in full by the trial Court, the Munsif of Bihar, have been partly dismissed by the Additional. Subordinate Judge of Patna.

(2.) The plaintiffs are cosharer landlords of the village where the rent-claimed lands are situated. The suits were for rents of 1333 to 1336 Fs. The plaintiffs shares consisting partly of the proprietary and partly of a leasehold interest, amounted to 7 annas 11 dams in the year 1333 and 13 annas 18 dams in the years 1334 to 1336 Fs. The rent was claimed at the rate of Rs. 7-8-0 per bigha. The defences raised included the denial of the extent of the plaintiffs share and of their right to collect their own share of rent separately, and a plea of payment, but the most important defence was the denial of the rate of rent, namely, Rs. 7-8-0 per bigha, it being asserted that it was only Rs. 5 per bigha. Both the Courts have overruled all other contentions of the defendants; as to the rate of rent the defence has been accepted by the lower appellate Court. In order to appreciate the questions involved in the dispute about the rate of rent it is necessary to state a few facts.

(3.) The defendants and one of the plaintiffs, namely, Shconarain Mahton, and the fathers of the two plaintiffs, namely, Ramadhin Mahton and Tulsi Mahton, and some other persons not before us, were formerly the ijaradars or zerpeshgidars (lessees) of the village under the former proprietors. In 1909 when the village came under survey and settlement operations, a large area of land was found in the possession of the lessees which they claimed as their occupancy holdings at an annual rent of Rs. 5 per bigha. The proprietors, on the other hand, asserted that they were the bakasht of the landlords and that the lessees were in possession of them in that capacity. Up to the settlement stage under Section 103-A, Ben Ten. Act, the contention of the proprietors prevailed, and the lands were entered as the bakasht of the landlords; but subsequently under a revisional order of the Assistant Settlement Officer in charge, raiyati khatians were prepared in favour of the defendants (among others), and the rent-claimed lands with a rent at Rs. 5 per bigha were entered as their occupancy holdings, and it was with these entries that the Record of Rights was finally published. Being dissatisfied with this, the landlords instituted a suit under Sec. 106, Ben. Ten. Act. That suit was withdrawn with permission to bring a fresh one of the same cause of action. Later on, some of the proprietors instituted a suit in the civil Court, which was numbered 233 of 1911. That suit was for a declaration that the defendants had no raiyati land in the village, that the lands in suit were the bakasht of the landlords and that the defendants were in possession thereof as ijaradars, and for a declaration of the plaintiffs right over those lands, together with an injunction against the principal defendant not to cultivate the lands after the expiry of their ijara.