VAGHA JESING Vs. MANILAL BHOGILAL DESAI

JUDGEMENT

(1.) This is a group of appeals and one revision application arising in suits brought by some of the Desai inamdars of the village of Vinzol in the Panch Mahals to recover rent from their tenants for the year 1925-26 at the rate of Re. 1-1-0 per bigha according to the number of bighas in their holdings as ascertained at a survey made in 1923. The trial Court decreed all the suits. On appeal the District Judge held that the claim for the rent of 1925-26 was barred by limitation, but he gave a declaration of the plaintiffs right to recover at the rate claimed by them. The tenants have presented these appeals.

(2.) The inam of Vinzol is jointly owned by a number of sharers who manage the village by turns, the rents recovered from the tenants being divided among all the co-sharers. The arrangement which was in force for a long time prior to 1923 was that the tenants paid a lump sum by way of rent based approximately on the number of bighas in their holdings as roughly estimated without actual measurement. In the earliest jalas, that is, lists of tenants and the amounts payable by them, the area of the holdings is not mentioned at all (see exhibit 48 which is for the year 1893 and exhibit 49 which is for the year 1896). There are columns for the name of the tenant and the amount due from him as rent and as local fund. There is no column for the area of the land. In 1898 for the first time apparently (see exhibit 50) the approximate area of the land in bighas is also shown as well as the amount of rent, the latter being described as at the rate of Re. 1 per bigha, i.e. obviously the approximate bighas shown in the other column. In 1923 a survey was carried out at the instance of some of the co-sharers without the consent and against the will of others of them. These latter object to the plaintiffs plaint to recover rent on the basis of the survey and desire that the old system be continued. As they refused to be party plaintiffs they have been added as defendants.

(3.) A preliminary point has been taken on behalf of the appellants that the present plaintiffs being only some out of a number of joint owners of the inam have no right to maintain these suits or to recover rent under a new system against the will of their co-sharers. In support of this proposition reliance is placed on the judgment of this Court in Vagha V/s. Jagjivan . That judgment disposed of some earlier suits by the present plaintiff No. 2 to recover rent on the basis of the survey. He had succeeded in his suits in the trial Court but in revision this Court held that he had no right to recover more than what the tenants admitted to be due according to the old wahivat. The judgment of the learned Chief Justice Macleod is a short one and I may set it out in full :- These are applications entertained under Section 25 of the Provincial Small Cause Courts Act in suits filed by the Desais of the village of Vinzol. The plaintiffs were not entitled to claim the whole of the rent. They are sharers to the extent of fourteen annas and seven and a half pies. The sharer entitled to the balance is not a party to the proceedings. The plaintiffs are claiming their share of what is payable by the tenants, at a higher amount than has been paid in the previous years, on the ground that although the bigha in these cases may be the same, the tenants are liable to pay additional rent for certain excess land in their occupation. It would not, therefore, be, strictly speaking, a suit for enhanced rent, but merely a claim that the tenants should pay the proper rent for the lands they are cultivating, the rate itself being admitted. But since these tenants have been paying certain rents in past years for the land in their occupation, it is not open to one co-sharer to file a suit seeking to recover from the defendants a greater amount of rent than has been paid in the past. Whether the claim made is one for enhanced rent, or a claim for rent for excess land taken in occupation by the tenants, the principle is the same, that the question must not be at the mercy of one sharer, but, if at all, must be decided between the tenants and the whole body of sharers entitled to claim rent as landlords. On these grounds we think the Judge was wrong in entertaining the claim of the plaintiffs who were entitled to only fourteen annas and seven and a half pies share of the increased rent from the defendants. The defendants would still be liable to pay the balance of the rent to the co-sharer, and again they might be harassed by a claim for more rent on some entirely different principle. If higher rents are to be asked for, then they can only be asked for by the whole body of sharers (see Balkrishna V/s. Moro (1896) I.L.R. 21 Bom. 154).