DEO NARAYAN MISRA Vs. BHAJAN MAHTON

JUDGEMENT

(1.) This is an appeal by the plaintiff arising out of a suit for rent and for enhancement of rent under Section 30, Clause (b), Ben Ten Act, and the only question for decision is whether the District Judge was right to disallow the enhancement on the ground that the plaintiff was not the 16 annas landlord of the holding and could not maintain the suit for enhancement in the absence of the remaining cosharer landlords.

(2.) From the Record of Rights it appears that there is a mukarrari tenure of 42 bighas 5 kathas 9 dhurs (25-38 acres) of land in mauza Rahra. The holders of it are Deonandan Pathak, Ambika Pathak and the plaintiff Deonarayan Misser (the interest of the plaintiff standing in the name of his wife Bindbasini, who is his farzidar). Within this mukarrari the defendants have an occupancy holding of 17.18 acres. For this area they pay rent separately to Bindbasini (or plaintiff) and to Deonandan and Ambika under two separate registered leases, the rent payable to Bindbasini (or plaintiff) being Rs. 66-12-0 and that payable to Deonandan and Ambika being Rs. 49-5-9. The two sets of landlords realize their rents separately. The District Judge relied on Section 188, Ben Ten Act, as explained in Rai Jatindra Nath V/s. Prasanna Kumar [1910] 38 Cal. 270. For the appellant we were referred to Jognesh Prokash Ganguli V/s. Maniraddi [1908] 35 Cal. 417, but that was a decision given before the Privy Council ruling just cited. It proceeded on the ground that one of several landlords to whom a fixed amount of rent was separately payable under an agreement might not be a joint landlord within the meaning of Section 188, although he remains a joint owner. A reference to the report of Rai Jatindra Nath V/s. Prasanna Kumar [1910] 38 Cal. 270 shows that this same contention was raised before the Privy Council, but it does not seem to have found favour with their Lordships.

(3.) On the other hand, it has been repeatedly held that an agreement by a tenant with some of several joint landlords to pay separately to them a fixed amount on account of their shire of the rent does not constitute a separate tenancy and does not, in a suit for enhancement, relieve such cosharer landlord from the bar imposed by Section 188. For a clear statement of the principle I would refer to Baidya Nath De Sarkar V/s. Ilim [1897] 25 Cal. 917 which followed Gopal Chunder Das V/s. Umesh Narain [1890] 17 Cal. 695 and the unreported case of Hari Charan Bose V/s. Ranjit Singh [1896] 25 Cal. 917. These decisions also were cited before the Judicial Committee in Rai Jatindra Nath V/s. Prasanna Kumar [1910] 38 Cal. 270, and the decision of the Judicial Committee maintained the principle which these decisions had affirmed.