KUMAR JOGENDRA NARAIN SINGHA Vs. MOHAMED ISMAIL CHOUDHURY

JUDGEMENT

(1.) These eleven appeals arise out of as many suits under Section 105, Bengal Tenancy Act for settlement of fair and equitable rent on the grounds of additional area, the present rents being lower than the prevailing rate and rise in the price of staple food crops.

(2.) The facts are that the appellants along with five others form the entire body of landlords and the suits were purported to have been brought by and on behalf of all these persons. Kiran Bala Devi was plaintiff No. 5 and the appellant Kali Charan Singha, plaintiff No. 6. The suit proceeded to a hearing and a large number of witnesses were examined and a large number of documents filed on behalf of the plaintiffs. While the defendant's case was in progress Kiran Bala Devi who was described as plaintiff No. 5 filed an application on the 8th September 1920 to have her name struck out from the category of the plaintiffs on the ground that the suits were not instituted with her knowledge and consent and that she did not want to prosecute the suits. This application in spite of the other plaintiffs objection was granted, and Kiran Bala's name was ordered to be removed from the category of the plaintiffs. The other plaintiffs then applied to make plaintiff No. 5 a pro forma defendant and this was allowed. They also wanted to prove separate tenancy of the defendants under them but though opportunity was allowed them they did not attempt to prove it. In these circumstances the Assistant Settlement Officer dismissed the suits on the ground that the suits are not maintainable in the absence of one of the joint landlords under Section 188, Bengal Tenancy Act, and that the other landlords failed to prove a separate tenancy. On appeal by the remaining plaintiffs the learned Special Judge affirmed the order of the Court below. These second appeals from the decrees of the Special Judge came on for hearing before Chatterjea and Chotzner, JJ., who directed the lower Court to enquire by taking fresh evidence as to whether the person who had signed Kiran Bala's name in the plaints had the authority to do so, but retained the cases on the file of this Court. The records went back to the lower Court but as it was represented to it that the parties were going to settle the matter amicably that Court did not proceed further. An application was then made to this Court before the same Judges to call up the records from the lower Court for the purpose of recording the compromise. The records came to this Court and a petition of compromise between plaintiffs Nos. 1 and 4 and the tenant defendants Was filed. The negotiations for a compromise with the present appellant Kali Charan Singha fell through and he applied to the Court to proceed with the hearing of this appeal. The learned Judges thereupon permitted the appellant to examine in this Court a witness to prove the authority of Kali Das Dutta, who had signed the name of Kiran Bala Devi on the plaint's as her am mukhtear or general agent and also to file certified copies of plaints and decrees in which it appeared that Kali Das had acted as the lady's agent. The cases have come before us on transfer and we have examined a witness Ramesh Chandra Sanyal and received certified copies of a number of plaints and decrees filed by the appellant.

(3.) We understand that by the order of the learned Judges above referred to that we have to determine the question, though one of fact, as to whether or not Kali Das Dutta had the authority to sign Kiran Bala Devi's name on the plaint. The learned Vakil for the respondent objects that we are not entitled to determine in second appeal a question of fact in view of the finding of the lower Appellate Court that the plaints were filed without the knowledge and consent of Kiran Bala Devi. We feel bound by the order to which reference has been made and which is intended to minimise cost and time of this protracted litigation. Besides, the point which we are called upon to determine was not directly raised or decided by either of the Courts below. The authority of Kali Das Dutta was not questioned in the Courts below and the absence of the knowledge or consent of Kiran Bala, which was the only point decided, is not, as is contended, enough to dispose of the point raised under Section 188, Bengal Tenancy Act, if it is found that the plaints were signed on her behalf by her am mukhtear by whose acts and deeds she is bound under the power-of-attorney executed by her.