SHIB KRISHNA SINHA SARMA Vs. ATARJAN KHAN

JUDGEMENT

(1.) This Rule arises out of an application for distribution of rent under Section 88 of the Bengal Tenancy Act and the relevant facts are these. There is a tenure bearing a rental of about Rs. 50. The opposite parties Nos. 1 and 2 having purchased 2 as. 13 gandas 1 kr., 1 krant share of that tenure made the application for distribution of rent in their share. The opposite parties Nos. 3 and 4 are the other co-sharer tenants and the remaining opposite parties are the landlords. The application was resisted by the present petitioners who are the opposite parties Nos. 1 to 7 and they stated that the rent of the tenure was being collected separately by the petitioners and the co-sharer landlords, the rent in petitioners share being Rs. 30-4 and odd gandas, that in the share of opposite party No. 5 being Rs. 4-6 and odd gandas, that in the share of opposite parties Nos. 6 to 10 being Rs. 1-12 and odd gandas, and that in the share of opposite parties Nos. 14 to 21 being annas 9 and 10 gandas. They contended that the distribution as prayed for would be contrary to the provisions of Section 88 and adversely affected the interests of the landlords. It may be mentioned here that the remaining co-sharer landlords made no objection. The learned Munsif overruled the objection of the petitioners and held that the petitioning tenants would pay separately to the maliks every year Rs. 8-l5-l 1/2 p. as rent in respect of their share. Against that decision the present Rule has been obtained.

(2.) While dealing with the various points raised in support of the Rule, it is as well to remember that it is possible to have a distribution of rent either at the instance of the landlords or at the instance of the tenants. Section 88 of the Bengal Tenancy Act provides for distribution of rent at the instance of the tenants, the basic idea being to give relief to the tenants while not affecting the interests of the landlords. Thai was the old section and the same idea has been developed in the new section. It is also to be noted that the Court is not bound to make a distribution on the application of the tenants, but the Court may do so having regard to the equities of the case and in this matter definite guidance is given by the two limitations for the purpose of ensuring that the resultant divisions may not be too small to suit the convenience of the landlord. In this Court it is first contended in support of the Rule that the tenant is not entitled to make the application, because it is not found by the Court that the landlords had withheld their consent to the distribution of the rent. There is no substance in-this objection. The condition precedent to the application is that the tenant must give notice of his intention to make the application 6 months before filing such application and this has been done. That the landlord withholds his consent is the reason for the tenant to come to Court. In the present case the more fact that the petitioners are opposing the application is sufficient to show that they are withholding their consent. Supposing the landlords state in Court that they do not withhold their consent, that would not disentitle the tenants from having the distribution of rent as prayed for.

(3.) The next contention is based on the limitation (ii) which runs in these words: If the distribution of rent results in bringing the rent for any portion below rupees two and eight annas in case of holdings and rupees four in case of tenures.