PECHA MANDAL; BATU RAJBANSHI MINOR BY HIS MOTHER AND NEXT FRIEND DUBIA BEWA Vs. BHAIRABENDRA NARAYANA ROY

JUDGEMENT

(1.) These two appeals arise out of suits which were heard together in both the lower Courts. The lower Appellate Court in describing the suits states that they are suits for the rent of different arreas of land and also that in both suits the plaintiffs claim Compensation for, the use and occupation of excess land.

(2.) It is contended on behalf of the appellant that suits for compensation for use and occupation of land are of the nature of suits for damages which are triable in a Court of Small Causes and that the Munsif has not jurisdiction to deal with this part of the claim. Though it would seem that the plaint has not been well drafted the suits were in effect and were treated not as suits for damages for occupation of the excess land but as suits for assessment and realization of rent for the excess land. The decree granted by the Munsif and confirmed by the lower Appellate Court is clearly a decree in which the total rent has been assessed on the total areas of excess land in each suit and for rent for the land which was originally settled and also for the excess land. We, therefore, overrule the first contention raised on behalf of the appellant.

(3.) The next contention taken is that the lower Courts were wrong in treating this excess land as a separate holding. The plaintiffs sued as proprietors of an estate bearing Touzi No. 123. The lands in suit are in Mouza Muraripore and that mouza appertains to two Touzis Nos. 123 and 124 in equal shares. The owners of Touzi No. 124 succeeded in dispossessing the plaintiff and their co-sharers from their possession of that touzi and the plaintiffs were compelled to establish their rights by a civil suit. While the plaintiffs were out of possession the owners of Touzi No. 124 the proforma defendants Nos. 3 to 10 in the present suit, settled the land which is the subject of these suits with the principal defendants. It is contended that the plaintiffs cannot ignore that settlement, and while recognizing the previous settlement of a part of the land treat the excess land outside the area originally settled as a new holding. In our opinion the lower Courts were right in holding that the decision of this Court in the case of Abdul Hakim Saha V/s. Rajendra Narayan Roy 1 Ind. Cas. 312 : 13 C.W.N. 635, enables the plaintiffs to succeed on their suit as framed. On behalf of the appellant reliance is placed on the decision of another Bench of this Court in Parbatty Debya V/s. Mathura Nath Banerjee 15 Ind. Cas. 453 : 40 C. 29 : 16 C.W.N. 877 : 16 C.L.J. 9, in which it was pointed out that an undivided share could not be a holding within the meaning of Section 30 of the Bengal Tenancy Act. In that case the question for decision was whether the plaintiff who was the owner of an undivided share of a howla could bring a suit for enhancement of rent under Section 30 of the Bengal Tenancy Act, and it was decided that he could not. In the present case the question is whether the plaintiffs as owners of an undivided share of an estate can treat the excess land in the occupation of the tenant of the estate as a separate holding. On that point the ruling we have cited is decidedly in favour of the plaintiffs, and we are not prepared to dissent from it.