CHAUDHURY UPENDRANANDAN DAS MAHAPATRA Vs. UMAI SET

JUDGEMENT

(1.) The appellants are the proprietors of the estate bearing Touzi No. 598 in. the Midnapore District. Their property including this estate came under the management of the Court of Wards in 1905 and at their instance a Record of Eights was prepared which was finally published in 1911. The plaintiffs-respondents are the owners of a holding of which, according to their case, the proprietors of estates Nos. 597 and 598 are the superior landlords in equal undivided shares. In the Record of Rights of 1911, the plaintiffs holding was recorded as appertaining to estate No. 598 only. The appellants then applied under Section 105 of the Bengal Tenancy Act, for settlement of fair and equitable rent of this and other holdings. The application in respect of each holding was numbered as a separate suit and these suits were heard together by the Revenue Officer. At the trial before him the first of the issues which were framed was : "Does Section 188 of the Bengal Tenancy Act operate as a bar to the maintainability of these suits under Section 105?" This issue was decided in favour of the present appellants on the finding that the tenant defendants in those suits had failed to make out their case that the plaintiff (i.e., the Court of Wards manager who sued on behalf of the appellants) was a co-sharer landlord. He decided other issues against the tenant-defendants and fixed rents which were higher than those recorded in the Record of Rights. Appeals were preferred by some of the tenant-defendants but the plaintiff, respondent in the present appeal, did not appeal against the decree against him. These appeals were successful. The Special Judge held that the plaintiff in those suits, when he filed the applications under Section 105, Bengal Tenancy Act, was a joint landlord with his co-sharers within the meaning of Section 188 of that Act and as such was not competent to file the applications singly. After second appeals by the landlords to the High Court were unsuccessful the plaintiffs brought the suit out of which this appeal arises for a declaratory decree that the decree of the Revenue Officer was without jurisdiction and null and void.

(2.) The first Court held that the present suit was barred under Section 109 of the Bengal Tenancy Act. On appeal this decision was reversed. The learned District Judge held that the present appellants were not the sole landlords of the plaintiffs and were, therefore, incompetent to make the application under Section 105 of the Bengal Tenancy Act and consequently the decision of the Revenue Officer was clearly without jurisdiction and as such not binding.

(3.) On behalf of the appellants it was contended that the question whether they are sole or joint landlords of the plaintiffs cannot be re-agitated, that the finding that they are joint landlords is erroneous and that the suit is barred by limitation.