DATA RAM Vs. LJHAOO LAL

JUDGEMENT

(1.) This appeal arises out of a suit for arrears of rent in respect of an agricultural holding, which was instituted for the years 1335 to the Kharif of 1338 Fasli. It was held by the trial Court that the rent for the year 1335F could not be recovered owing to the rule of limitation, and there is no appeal upon that point. In respect of the other years-two objections have been taken here. The first is that part of the rent could not be recovered because it constituted the rent of an exproprietary holding and the rate had not been fixed by the Court. The other was that there could not be one suit in respect of arrears of rent for land in two mahals. The suit was for recovery of rent at the rate of Rs. 70-1-0 a year. The land in respect of which the suit was instituted was at one time held by two brothers, Jhanjan Singh and Baldeo Singh, who were zamindars with sir rights. Jhanjan Singh transferred his zamindari rights in the year 1916 and became an exproprietary tenant of his sir at a rent of Rs. 34-5-0 a year. A few months later Baldeo Singh sold his zamindari rights. He also became an exproprietary tenant, but the rent of his exproprietary holding was fixed not by the Court but by a registered agreement between the parties. The rate of rent was Rs. 35-12-0 a year. The defendant- appellants are the sons of Baldeo Singh and the nephews of Jhanjhan Singh. At one time the rent of the two holdings was apparently paid-separately, but after a time, when Baldeo Singh and his wife were dead, Jhanjan Singh and his nephews paid the rent in one lump sum of Rs. 70-1-0 a year for all the land. As I have already mentioned, the first argument addressed to me is that the rent of Baldeo Singh's holding at the rate of Rs. 35-12-0 a year cannot be recovered in the suit because it was not fixed by the Court. It has been held in Kantoo Singh V/s. Imdad Ali 1924 All 944 and the case of Nathu V/s. Ganpat that rent fixed by agreement between an exproprietary tenant and his zamindar can be recovered by suit if it is not in excess of the legal rate. It is to be noted that the rent paid by Baldeo Singh was practically the same as that paid by Jhanjan Singh and there was nothing to show that it was excessive. It is not necessary to go any further although I may say for myself that I do not see why a person who has acquired ex-proprietary rights should not enter into an engagement with the zamindar to pay rent at a certain rate. He cannot, of course, contract himself out of the terms of the statute and consequently when he transfers his zamindari rights he becomes an exproprietary tenant with the right to hold the land at a certain rent, which is to be fixed by the Court either of its own motion or at the request of the parties. But, if after the sale takes place and these rents have accrued the exproprietary tenant chooses by a subsequent and independent engagement to bind himself to pay rent at a certain rate on condition that the zamindar recognizes that he will continue to have the rights of exproprietary tenant, I cannot see what there is to prevent the parties from entering into a contract of this nature. There is no force, in my opinion, in the first point raised by the appellants. It would be absurd if after having been in possession of the holding since 1916 and having paid the rent, they should suddenly claim to be exempt from payment merely because the rent had not been fixed in the first instance by the Court. As a matter of fact in the year 1338F the Sub-Divisional Officer did direct that the rent agreed upon should be entered in the patwari's papers and, in that sense, did fix rent.

(2.) The other point is that both Jhanjan Singh and Baldeo Singh held land in two mahals, that is, mahal Mustahkam and mahal Ihtimali. The learned Judge of the lower appellate Court has found that Jhanjan Singh, as a matter of fact, held no land in mahal Ihtimali in the strict sense of the term when his rent was fixed by the Court, because at that time the land in that mahal was under water. It is not established whether Baldeo Singh's land was under water at the time when he sold his zamindari rights, but his holding does now comprise a certain amount of banjar" in mahal Ihtimali. Jhanjan Singh's land in mahal Ihtimali is still under water. The learned Judge came to the conclusion, in the first place, that to all intents and purposes the rents were assessed only on land in mahal Mustahkam, but he also found that there was nothing to prevent a tenant having a holding consisting of land in more than one mahal. I have been referred to the case of Bhup Narain Rai V/s. Radha Krishna 1925 78 IC 277, but that case does not appear to me to be authority for the general proposition that there may not be one holding consisting of land in more than one mahal. In that case there was originally one engagement in respect of 96 bighas 19 biswas of occupancy land, but the engagement had taken place many years before and, in the meanwhile, the area had been split up and divided among nine separate villages. It was held on the facts of that case that there were nine separate holdings. The learned Judge who decided the case said that there might be some force in the argument to the effect that originally 96 bighas and 19 biswas were one holding, because the whole area at that time consisted of parcels of land held under one tenure and one engagement. He thought that the subsequent incidents had led to the conversion of this one holding into several separate holdings.

(3.) In the present case the position is different. There certainly was one engagement in respect of the two mahals by Jhanjan Singh and by Baldeo Singh. It was argued in the Court below that Jhanjan's holding and Baldeo Singh's holding were separate. The learned Judge found that they had undoubtedly been separate at one time but they had been combined with the mutual consent of the tenant and zamindar. In any event, the only argument addressed to me is that the suit was bad for misjoinder of causes of action, because it was in respect of land in mahal Mustahkam and land in mahal Ihtimali. A reference has been made to Section 133, Tenancy Act. That section however deals with suits in respect of different holdings and lays down that there cannot be a suit in respect of more than one-holding unless the holdings are in the same mahal. The question here is quite different. Certainly there was no separate holding in mahal Mustahkam and in mahal Ihtimali. The holding was one because the land in the two mahals was held under one engagement. There is nothing in the Tenancy Act to prevent a tenant and a zamindar entering into an engagement in respect of parcels of land in more than one mahal, and if they enter into such an engagement the land in the different mahals must constitute one holding.