RAGHUNANDAN PRASAD SINGH Vs. LALIT MOHAN GHOSH

JUDGEMENT

(1.) This was an action for rent by the appellants against the defendant who was also in possession of 8 annas proprietary interest with the plaintiff. The defendant purchased in execution of a rent decree certain holdings belonging to a tenant and proceeded to occupy them. In those circumstances the plaintiffs claimed rent for the years 1331.34 Fs. It is perhaps important to notice that the claim the plaintiffs made was for rent, so-called. In para. 4 of their plaint they have stated: In spite of demands the defendant did not pay the rent in suit. So he is liable to pay interest at twelve and half per cent. per annum.

(2.) In a later stage, that is to say in the Court of appeal, they wished to amend their plaint by claiming compensation for use and occupation of the land. I suppose this attempted amendment was for the purpose of answering the point which was made against the plaintiffs, namely, that if they were entitled to realise rent from the defendant, then having regard to the findings of the Courts that the greater part of the land could not be cultivated, the defendant was entitled to a remission of rent. In the result the plaintiffs got a decree for rent for some 11 bighas odd out of a total of over 100 bighas.

(3.) It is now contended (as it was in the Court of appeal below) that the status of the defendant being in possession of a part of the raiyati land and at the same time being a cosharer landlord with the plaintiff, was not that of an occupancy raiyat; and that, as such, although it was shown that a greater part of the land was not capable of cultivation, he was not entitled to remission of rent or reduction of rent under Section 38, Ben. Ten, Act. One case is relied upon for the contention that the status of the defendant is not that of an occupancy raiyat, but that appears to be clear apart from authority for the simple reason that Section 22 (2) provides for the circumstances in which a person in the position of the defendant in this action transferred or sublet the land which he held to a tenant in which event the tenant would not be an under-raiyat but an occupancy raiyat or a tenure-holder as the case might be. The case relied upon is the decision in Rambhadur Lal V/s. Mt. Gungora Kuar 1925 Pat 547. But there is a decision of this Court based upon a number of authorities in the case of Sukhraj Rai V/s. Ganga Dayal Singh 1922 Pat 169, which decides that the right to remission exists as a matter of justice and apart from the provisions of Secs.38 and 52, Ben. Ten. Act.