SIVADAS DUTTA Vs. BIRENDRA KRISTA DUTTA

JUDGEMENT

(1.) The appeal arises out of a suit for rent. The plaintiff claims in his one-anna share, rent for certain lands at the rate of Rs. 89-10-101/2 gandas per year from 1324 to 1327, alleging that the defendants hold 2610 bighas odd at a rental of Rs. 1,434-8-8 gandas. His case is that the area and the rental were fixed in a suit inter partes, i.e., Rent Suit No. 49 of 1887 of the first Court of the Subordinate Judge at Alipore. The defendants contend that they hold about 1002 bighas of land under two pottas dated 4 Jaistha 1242 and 5 Falgoon 1247, that since the grant of the said pottas the plaintiff and his co-sharers have got remission of 25 per cent. of the rent payable by them to the Government under whom they hold, and that by the terms of the aforesaid pottas the defendants are legally entitled to get a deduction at the same rate. They further say that some of the lands hare been washed away or rendered unculturable and under the terms of the pottas they are entitled to a deduction on that ground as well. In order to have the rental assessed they applied for a measurement of the lands. As regards Rent Suit No. 49 of 1887 their case is that the result thereof is of no consequence so far as the plaintiff is concerned.

(2.) The Courts below have decreed the plaintiff's suit. The Court of first instance held that the defendants are bound to pay rent to the plaintiff at the rate claimed end that in a previous rent suit between the parties, viz., Suit No. 447 of 1917 it had been held that that was the rate at which they should pay. It refused the application for measurement and left the question as to the area of the rent-land open and undecided. It also observed in its judgment that the pottas had not been proved in the case and so no interpretation of the pottas was possible, and that the defendants had failed to prove what quantity of land, if any, had been washed away. The Court of Appeal below proceeded upon the view that no plea of abatement could be given effect to in a suit in which all the co sharer-landlords are not parties. It also held that the decree in Suit No. 49 of 1887 was binding between the parties as to the rental, as also the decree in the subsequent suit for rent, namely, Suit No. 447 of 1917. The defendants have thereupon preferred this appeal.

(3.) In our judgment of the 27 February 1925 we decided that the learned Subordinate Judge was wrong in holding that the defendants were precluded from raising the question of abatement of rent by reason of the constitution of the suit, namely, that it was a suit between one of several co-sharer-landlords and the tenants, when the said co-sharer under an arrangement between himself and his other co-sharers and the tenants has been collecting his share of the refit separately. To this decision we still adhere.