JADU DUBE Vs. DASRATH RAI

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit brought by him against the defendant-respondent to recover arrears of rent which was payable admittedly by division of produce. The trial Court decreed the suit, but the learned District Judge, Ghazipuir, dismissed the suit with a finding that the plaintiff had not taken necessary steps for the division of the produce at the time of the produce. Against this decision this appeal has been preferred. The only question for determination is whether the suit lies or not. There is no provision in the Agra Tenancy Act, which forbids the filing of a suit if the necessary steps for the division of produce, such as are prescribed under Secs.138 and 139, Tenancy Act, are not taken in time. On the other hand, Section 132, Tenancy Act, which applies to the recovery of arrears of rent lays down: An arrear of rent shall be recoverable by suit, or by distraint or by notice through the tehsildar in accordance with the provisions of this Act or in any one or more such ways.

(2.) Secs.138 and 139 provide for the procedure to be adopted in case either party applies for the division of the produce in kind, or for estimate or appraisement of the standing crops where rent is taken by estimate or appraisement. As already stated there is nothing in the provisions of Secs.138 and 139 which may bar a suit for recovery of arrears of rent even if either of the parties fail to take necessary steps under Secs.138 and 139 for the division of the produce where the rent is taken by division, or for estimate or appraisement of the standing crops. This view is not without an authority. In Indarjit Partap Bahadur Sahi V/s. Sewak Raj 1932 All. 149, it was held that whether rent was payable by division of the produce and the rent was in arrears, a suit for the money equivalent of such rent lay under Section 132, Tenancy Act of 1926, and that Secs.138 and 139 simply laid down the procedure for the deputation of an officer and there was nothing in them which could cut down the right of suit granted by Section 132.

(3.) The learned District Judge did not enter into the question as to how much rent was due by the defendant respondent. It is therefore ordered that the appeal be allowed with costs. The case be remanded to the lower Court to admit it under its original number and to dispose of it in accordance with law on the evidence on the record. The court-fee will be refunded as usual. Permission to file a Letters Patent appeal is rejected.