RANI BHUNESHWARI KUER Vs. BABU SAJIWAN PRASAD SINGH

JUDGEMENT

(1.) These three appeals arise out of three suits (Rent Suits Nos. 177, 178 and 281 of 1940) originally instituted by Eani Bhuneshwari Koer, appellant 1, against different persons for recovery of bhaoli rent for the years 1345 and 1346 fasli in respect of certain raiyati holdings situated in village Eouna Sherpur, District Gaya. Appellant 2 is the Maharajadhiraj of Darbhanga (referred to hereinafter as the Maharaja) who was originally impleaded as a pro forma defendant in all the three suits but subsequently made a co-plaintiff in Suits Nos. 178 and 281. Eani Bhuneshwari Koer will be referred to hereinafter as the plaintiff. The proprietary interest in the said village Rouna Sherpur which vests in the plaintiff is subject to five mokarrari tenures, three of, 4 annas each and two of 2 annas each, the total rental being Rs. 6193 6-0. By a Sadhua Patua deed dated 15 August 1931 the plaintiff mortgaged with possession her proprietary interest in the entire village to the Maharaja with the stipulation that in the event of the mortgagee purchasing any of the mokarrari tenures in execution of a decree for arrears of rent due in respect thereof, the mortgagor would be entitled to get sir possession of the tenure on payment of the purchase-money to the mortgagee purchaser and would pay rent of the same to the mortgagee during the subsistence of the mortgage. The Maharaja purchased the two tenures of 2 annas each in execution of rent decrees and got possession of the same in 1344 and thereafter he is said to have transferred them to the plaintiff in accordance with the above stipulation with effect from 1345. Accordingly, the plaintiff as mokarraridar in respect of 4 annas brought these rent suits on 9 September 1939.

(2.) The defendants in the first two suits who are the raiyats of the respective holdings concerned are themselves mokarraridars in respect of two of the tenures of 4 annas each. The defendant in the third suit was the mokarraridar in respect of one of the two defaulting tenures of 2 annas each which were purchased in execution of rent decrees by the Maharaja and said to have been subsequently transferred by him to the plaintiff. The suits were contested on the grounds, inter alia, that the holdings were not properly described, that the plaintiff had no right to sue, and that the bhaoli rent was commuted to cash rent by hukumnamas dated 15 Asarh 1338 granted by the mokarraridars with effect from 1339. Suits Nos. 178 and 281 were tried jointly with another suit with which we are not concerned. Suit No. 177 was tried separately. All the suits, however, were tried by the same Munsif.

(3.) In all the three suits the learned Munsif disbelieved the case of commutation. As regards the description of the holdings, he accepted the plaintiff's case. In Suit No. 177 he held that the plaintiff, having obtained a deed of assignment dated 3rd November 1940 from the Maharaja, was entitled to a decree for the rent for 1346 only as the claim for 1345 was barred. He accordingly decreed this suit in favour of the plaintiff for the rent of 1346 only. In the other two suits he held that the plaintiff, having no document of title, had no right to sue, but the Maharaja, having been made a co-plaintiff, was entitled to a decree. Accordingly these two suits were decreed in favour of the Maharaja. Prom these decrees the defendants preferred appeals, and the plaintiff filed cross-objection in respect of the claim for 1345 in Suit No. 177. These appeals were heard together by the Subordinate Judge. He held that the holdings were not properly described, that the bhaoli rent was commuted to cash rent, that the plaintiff was not entitled to a decree in suit No. 177 and that in the other two suits the Maharaja was not entitled to any decree. He accordingly allowed the appeals and dismissed all the three suits. Hence these second appeals by the plaintiffs. Appeal No. 512 arises out of Suit No. 177, Appeal No. 513 out of Suit No. 178 and Appeal No. 520 out of suit No. 281. The first point argued by Mr. L. K. Jha for the appellants is that there . was no valid and bona fide commutation of bhaoli to cash rent. The Subordinate Judge's finding on, the point has been attacked, in the first place, on the ground that the hukumnamas Ex. B series by which commutation, is said to have been effected are inadmissible in evidence as they are unregistered. The terms of the hukumnamas being similar, it will be enough to reproduce one of them, Ex. B: Whereas, in accordance with your request, rent of the land mentioned below, of which the khata numbers and survey plot numbers are given below and which were held as Bhaoli lands from before, has been commuted into Nakdi rent at an average rental of Rs. 2 per Bigha besides cesses, i. e., rupees 70-11-0 besides cesses; it is desirable that you should pay Rupees Seventy and annas eleven per year as rent besides cesses for the lands mentioned below according to the custom of Kist prevalent in the village and therefore this hukumnama is being given to you for your assurance and satisfaction to be used in time of need.