BHOSAI (BEPARI) Vs. AMINUDDI

JUDGEMENT

(1.) The plaintiffs appellants as the owners of a 5/6th share of a miras tenure sued to recover rent of a houla (subordinate to the miras) held by the principal defendants, the owner of the remaining 1/6th share of the miras being made a pro forma defendant on the ground that she refused to join with the plaintiffs in the suit. The suit was based upon a kabulipat which described the land let out as 50 bighas by guess" and provided that the lessees should enjoy the land rent-free for two years and that thereafter they should pay rent at the rate of Rs. 2 per bigha fixed in perpetuity for as much land as was cleared and brought under cultivation. No period was fixed within which the land should be reclaimed, but it was provided that if the surrounding lands were all brought under cultivation the executants would be liable to pay rent for the entire area in their possession at the stipulated rate.

(2.) The area of the land comprised in the howla was found to be 83 bighas in the Record of Rights, and it was also found that all the surrounding lands with the exception of a small patch of land reserved as pasture land had been brought under cultivation.

(3.) The plaintiffs stated that they were unable to ascertain whether any rent was due to the pro forma defendant and claimed their share of the rent of the entire land. They also prayed that the pro forma defendant might be joined as plaintiff if she desired to do so and a decree might be passed for the entire rent if it was found that the rent due to her was left unpaid, on taking additional Court fee from the plaintiffs. The Court of first instance passed a decree in favour of the plaintiffs, but on appeal that decree was reversed by the District Judge. The plaintiffs have appealed to this Court.