KALI CHARAN SINGHA Vs. MAHAMMAD ISMAIL CHOWDHURY

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 appellant 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. Kiranbala Devi was plaintiff No. 5 and the appellant Kali Charan Singha plaintiff No. 6. The suits 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 defendants case was in progress Kiranbala 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 Kiranbala'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 separata tenancy. On appeal by the remaining plaintiffs the learned Special Judge affirmed the order of the Court below. These second appeals from the decree 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 Kiranbala's name in the pLalnts 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 the plaintiffs No. 1 to 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 his appeal. The learned Judges thereupon permitted the appellant to examine in this Court a witness to prove the authority of Kalidas Dutta, who had signed the name of Kiranbala Devi on the pLalnts as her Am-Mukhtear or general agent and also to file certified copies of pLalnts and decrees in which it appeared that Kalidas 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 pLalnt and decrees filed by the appellant.

(3.) We understand 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 Kalidas Dutta had the authority to sign Kiranbala Devi's name on the pLalnt. 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 pLalnts were filed without the knowledge and consent of Kiranbala 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 Kalidas Dutta was not questioned in the Courts below and the absence of the knowledge or consent of Kiranbala, 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 pLalnts were signed on her behalf by her Am-Mukhtear by whose acts and deed she is bound under the power-of-attorney executed by her.