DEO NARAIN SINGH Vs. MTLILA KUER

JUDGEMENT

(1.) These appeals arise out of two actions for rent, one bhaoli and the other naqdi. Suit No. 11 which is equivalent of second appeal No. 524 of 1934 related to 4 bigas of bhaoli, and Suit No. 14 equivalent to second appeal No. 332 related to 2 bighas of naqdi.

(2.) A number of questions arose both as regards the area and as regards the alleged payment, but these have been disposed by the Court below against the defendant and being questions of fact cannot be disturbed in second appeal. The substantial question however is whether there had been apportionment of rent. It is clear from the judgment of the learned Judge in the Court below that parts of these holdings had fallen into the takhta of the plaintiff, and the first question which, appears to have been raised was that the tenants were no parties to the agreement as between the co-sharer landlords, as the partition was effected in the civil Court and was not under the Estates Partition Act. The Judge in the Court below has however come to the conclusion that the agreement is binding upon the tenant appellant for the reason that he had in fact paid rent on previous occasions. Mr. Sarju Prasad who appears on behalf of the defendant appellant relies upon the decision in Mt. Nepur Kuer V/s. Bhan Pratap 1935 Pat 227. That was a decision of this Court in which certain decrees were being executed and the point for decision was whether the decrees amounted to rent decrees or money decrees. In the course of his judgment in that case my brother Mohamad Noor made this observation: The civil Court partition is between landlords, and by itself it does not constitute the breaking up of the holding. The holding is a unit for which a certain rent is payable to the landlord. The rent payable is not divisible being a lump rental in respect of the entire holding. The holding can be broken up and rents apportioned with the consent of all the parties concerned, namely, all the landlords and raiyats concerned.

(3.) He then goes on to point out that: There is no procedure in civil Court partition suits under which the tenants can be brought on the record and the rents apportioned after splitting up the holdings. He then observes which of course, if I may say so, is correct: What the civil Court partition does is that it changes the position of the cosharer landlords from holders of lands as tenants in common into landlords holding different pieces of land in severalty, but so far as their relation with a raiyat, lands of whose holding have been allotted to the different landlords is concerned, they continue to be his cosharer landlords.