KHUSHI LAL JHA Vs. KANAK LAL MAHTO

JUDGEMENT

(1.) These appeals arise out of seven suits for rent in which the Courts below have given effect to the plea raised by defendant 1 in each suit that the soil of the holding which was the subject-matter of the suit had deteriorated on account of the deposit of sand and giving effect to this plea have remitted 25 per cent, of the amount of rent payable for the holding. The landlord plaintiffs have preferred these second appeals to this Court and the contentions which have been pressed on their behalf are as follows: (1) that the Courts below should not have given effect to the plea of defendant 1, inasmuch as in law no plea for abatement of rent can succeed unless it is raised on behalf of the entire body of tenants and (2) that the plea of abatement is no longer available to the tenant-defendants inasmuch as Section 38, Bihar Tenancy Act, has been repealed and under Section 112A of the new Act, it is only the revenue Court which can grant partial or entire remission of rent if the soil of a holding has become either temporarily or permanently deteriorated by deposit of sand, by submersion under water or by any other specific cause, sudden or gradual. So far as the second contention is concerned it has been argued before us that the effect of the enactment of Section 112A, Bihar Tenancy Act, is to deprive the civil Court of the power to grant remission of rent and to transfer that power to the revenue Court.

(2.) In support of his first contention the learned advocate for the appellant relies on Kesho Prasad Singh V/s. Mahesardayal Missior A.I.R. 1933 Pat. 607, Bhoopendra Narain Dutt V/s. Krishna Dutt (1900) 27 Cal. 417 and Rishee Case Law V/s. Golam Ali Mirdha . In the first case which was decided by a learned single Judge of this Court it was held that it was not competent to a few out of a body of tenants of one holding to apply for abatement of rent, under Section 38, Bihar Tenancy Act, or to claim an abatement in defence of a suit for rent under that section and that all the tenants must join in such an application or claim.

(3.) What had actually happened in that case was that one of the tenant- defendants who had appealed to the District Judge against the decree of the first Court in favour of the landlord had died before the hearing of the appeal and his legal representatives were not on the record when the District Judge heard the appeal. The District Judge in appeal gave effect to the plea of abatement which had been raised by the tenants on the ground that four acres of the holding had deteriorated by deposit of sand. Then there was a second appeal and the learned Judge of this Court had to consider the effect of the absence, in the record of the case of one of the tenant-defendants who had died and whose legal representatives had not been substituted. The learned Judge held that the plea of abatement could not be given effect to in the absence of one of the tenants. In the second case it was held by a Bench of three Judges of the Calcutta High Court that the expression "tenant" in Section 52, Ben. Ten. Act, did not include the case of a mere cosharer tenant who had only a fractional share in the tenure but meant the tenants of the tenure and not one of many tenants. As a corollary from this view it was further held that in a suit for rent brought by some of the several joint landlords against one of several joint tenants for recovery of the plaintiff's share of the rent payable on account of the defendant tenants share of the tenure under a previous arrangement, such tenant defendant cannot claim abatement under the provisions of Section 52, Ben. Ten. Act. In formulating the question which arose in that case for decision Maclean C.J. in his leading judgment observed as follows: The question we have to decide is whether or not as a mere cosharer in the tenure, he (the defendant) is entitled in this suit to which neither the other cosharer landlords nor the other cosharer tenants are parties to ask for a measurement, and to obtain any reduction, if any deficiency be proved. I have quoted this observation to make it quite clear that in the particular case which was before the Calcutta High Court all the cosharer tenants were not parties to the suit. Therefore another learned Judge, who was a party to that decision--Banerjee J. explaining that the view which was taken in that case would involve no hardship, added the following observation to those already made by the learned Chief Justice: But I do not think there is any real hardship in the case, so far as the tenant-defendant is concerned. It is always open to him to bring a suit for abatement of rent, making all the joint landlords and his cosharers in the tenancy parties to the suit, and he can obtain abatement if his case is well-founded.