KESHO PRASAD SINGH Vs. MAHESARDAYAL MISSIR

JUDGEMENT

(1.) THIS is an appeal which arises out of a rent suit brought against four defendants out of whom defendant No. 2 alone contested the suit and claimed an abatement of rent under Section 38, Bengal Tenancy Act. The trial Court decreed the suit in full holding against the contesting defendant that no custom in support of the abatement claimed had been proved nor the unculturability of any portion of the land in suit during the years in question. On appeal the learned District Judge allowed an abatement of rent for 4 acres which he held were deteriorated by the deposit of sand. Mr.S.M. Mullick for the appellant has raised several points; but it is quite sufficient to deal with only one of them. THIS point is the fact established by an affidavit filed in this Court on January 7, 1932, that out of the four tenants defendants, who had preferred the appeal against the decree of the trial Court, one had died before the learned Judge heard the appeal, and nobody had been brought on the record in his place. Mr. Mullick contends that in these circumstances the appeal to the learned District Judge became incompetent; and in support of this submission he has cited Narendra Nath Kutti V/s. Satyadhan Ghoshal 54 Ind. Cas. 396 : A.I.R. 1920 Cal. 168 : 30 C.L.J. 203 and Rishee CaseLaw V/s. Golan Ali 111 Ind. Cas. 111 : A.I.R. 1928 Cal. 548 : 55 C. 676. The learned Advocate for the tenants-respondents has endeavoured to argue that the decisions referred to were erroneous and opposed to justice by reason of the facts that Section 188, Bengal Tenancy Act, is expressly confined to landlords and that the liability of tenants to pay rent, to landlords for their agricultural holding is in these parts joint and several.

(2.) THE argument is that in these circumstances there is no reason why one out of several tenants should not be entitled to claim an abatement of rent in the circumstances given in Section 38, Bengal Tenancy Act. THE reference to Section 188, Bengal Tenancy Act in Bhoopendra Narain Dutt V/s. Romon Krishna Dutt 27 C. 417 : 4 C.W.N. 107 on which the decision in Narendra Nath Kuti V/s. Satyadhan Ghoshal 54 Ind. Cas. 396 : A.I.R. 1920 Cal. 168 : 30 C.L.J. 203 is based, did not by any means overlook the fact that the section was confined to landlords. As to the so-called justice of such a situation, it is needless to say anything beyond what was said by Banerjee, J., in the case of Bhoopendra Narain Dutt v Ronton Krishna Dutt 27 C. 417 : 4 C.W.N. 107. It is true that the decisions so far referred to are not absolutely binding on me sitting in this Court, but I am entirely unable to see any reason for taking a view at all different from that of the distinguished Judges who took part in them. I have no doubt in my mind that it is not competent to a few out of a body of tenants of one holding to apply for abatement under Section 38, Bengal Tenancy Act, or to claim an abatement in defence of a suit for rent under that section; but that all the tenants must join in such an application or claim. THE fact that one of the tenants defendants who had appealed to the District Judge was dead at the hearing of the appeal is not controverted by means of any counter-affidavit. It must therefore follow, no legal representative having been brought in his place before the learned Judge heard the appeal, that the remaining tenants defendants who were on the record as appellants were not entitled to obtain any abatement from the learned Judge. THE learned Advocate for the respondents has urged that the decree of the Appellate Court being void in the circumstances, a second appeal to this Court does not itself lie. This I am unable to accept on principle and Mr. Mullick has at once referred to Jhenak Singh v. Ambika Prasad 71 Ind. Cas. 424 (1) : A.I.R. 1923 All. 414 (1) where, in similar circumstances, the second appeal was allowed, the decree of the District Judge set aside and a suitable consequential order made. THE appeal is allowed and the decree of the lower Appellate Court set aside with costs in both Courts.