HARADHONE PALIT Vs. PANCHANAN PALIT

JUDGEMENT

(1.) This appeal is by the defendants in a suit under Section 105, Ben. Ten. Act, for settlement of rent in respect of the land held by the defendants under the plaintiff. The lands in suit have been recorded in C.S. Khatian No. 201 of the finally published record of Mouza Tala, J. L. No. 61 of P.S. Arambagh. The defendants have been recorded therein as tenure-holders under the plaintiff in respect of these lands and the tenure has been recorded as liable to be assessed to rent. The C. Section record was finally published on 16 March 1936 and the plain, tiff Sir Bejoy Chand Mahtab G.C. I.E.K.G.S.I.I.O.M., instituted the present suit on 11 July 1936 under Section 105, Ben. Ten. Act, for the settlement of rent in respect of the tenure. The defendants appeared and contested the claim saying that the lands constituted their niskar holding and that these were wrongly recorded as liable to be assessed to rent under the plaintiff. The Assistant Settlement Officer who heard the case decreed plaintiff's claim and settled Rs. 121-4-0 to be the fair and equitable rent in respect of the defendants tenure recorded in Khatian No. 201 as aforesaid. He directed that the new rent would come into effect from the beginning of the next agricultural year, i.e., from the middle of April 1938.

(2.) The Assistant Settlement. Officer based his decision on the following considerations: (1) That the finally published record of rights raised a presumption in favour of the plaintiff; the onus lay on the defendants to prove that the lands in question were the niskar property of the defendants; (2)(a) That in support of the defendants case they relied on Exs. A to z, A/A and A/H; and on the oral evidence of D.w. 1. (b) That the evidence adduced did not establish the niskar right claimed by the defendants. The defendands preferred an appeal against this decision and the special Judge who heard this appeal allowed the defendants to adduce further evidence at the appellate stage and arrived at the following conclusions: (1) That the C. Section Plots 21, 32, 16, 75, 96, 87, 88, 71 and 73 of the Khatian No. 201 are not in possession of the defendants, these having been purchased by the plaintiff himself at an auction sale; that the defendants are no longer liable to pay rent in respect of these plots; (2) That the defendants failed to establish their niskar right; (8) That the Assistant Settlement Officer was right in negativing the contention of the defendants appellants that the lands in suit were niskar.

(3.) The learned special Judge therefore affirmed the decision of the Assistant Settlement Officer that the tenancy was not a niskar one and that it was liable to assessment of rent, but set aside the decree so far as it settled the amount of rent and settled it from the next agricultural year and remanded the case to the Assistant Settlement Officer with a direction to grant a proportionate reduction of rent in respect of the lands found by the learned special Judge as no longer in the possession of the defendants and thus to settle the fair and equitable rent for the remaining plots. Against this decision, the present appeal was preferred by the defendants on 9 December 1938. In the memo of appeal, the plaintiff was the sole respondent. No appeal or cross-objection was filed by the plaintiff. During the pendency of this appeal, the plaintiff Maharaja granted a patni to Panchanan <JGN>Pal</JGN> it on 27 April 1939. This patni included the suit lands also. The putnidar applied for being added as a party respondent to this appeal under Order 22, Rule 10, Civil P.C., and he was so added on 22 July, 1940, as respondent 2, the plaintiff Maharaja being retained as respondent l. Thereafter, the original plaintiff respondent died on 29 August 1941 and no substitution was made in his place. It is contended by the surviving respondent that in the result the appeal abated as against the Maharaja. A preliminary objection has been taken to the hearing of the appeal on the ground that the appeal having abated as against the deceased plaintiff-respondent, it has become incompetent as against the added respondent also. Order 22, Rule 4, read with Rule 11, Civil P.C., is the appropriate provision. Rule 4 runs as follows: (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2)... (3) Where within the time limited by law no application is made under Sub-rule (1) the suit shall abate as against the deceased defendant. (4)...