SYED MAHOMED MALIHA Vs. CHOWDHURY MAHOMED ISMAIL KHAN

JUDGEMENT

(1.) This is an appeal by the defendants and it arises out of a suit for partition. The judgment in the trial Court was delivered on June 27, 1916. The defendants had no ground of complaint against the decree which was drawn up in accordance with it. Their grievance is against the decree which was prepared by amending the decree as originally made on March 24, 1925. The circumstances which gave rise to the appeal are somewhat novel in our experience.

(2.) There is no dispute as regards the shares of the parties. The plaintiff is entitled to two- thirds share and the defendants are entitled to one-third share of the property. Two commissioners were appointed to effect a partition. Each of them appeared, previous to their being appointed as commissioners, as pleader for one of the parties. These commissioners made a report, and after making elaborate enquiry they made a division of the properties in dispute. Their final report is dated the 17 June 1916. The properties consisted of superior rightes in certain mouzas and also tenures comprised within those mouzas and the joint properties were placed by the commissioners in five schedules, A, B and C, consisted of the superior interest in the mehals. Schedule A was left joint by consent of "parties. Schedule B was allotted to the plaintiff and Schedule D to the defendants. Schedule D and Schedule B consisted of tenures. Schedule D was allotted to the plaintiff and it was-arranged by consent of parties that plaintiff would grant a lease of tenures to the defendants. Schedule B was allotted to the defendants and it was similarly arranged by consent of parties that the defendants would execute a lease in favour of the plaintiff for those properties. The scheme prepared by the commissioners has been stated in detail at page 30 of the paper-book in the commissioners report.

(3.) The question that will arise for our decision in this appeal is with reference to the rent that is payable by one party to the other with reference to the lands in Schedules D and E. What was done by the commissioners was that they set off the rent payable by the plaintiff to the defendant and they directed that the excess of the rent payable by the defendant to the plaintiff should be the only amount which the defendant should pay to the plaintiff. They fixed the amount at Rs. 413-11 as-4p. after taking into account the rents payable on account of various items by the plaintiff to the defendants and by the defendants to the plaintiff and setting one off against the other. The matter then came before the Subordinate Judge who, by his judgment dated the 27 June 1926, modified the report of the commissioners as regards the amount of rent payable by the defendants to the plaintiff. The Subordinate Judge made certain calculations and came to the conclusion that the rent payable by the defendants to the plaintiff should be Rs. 129-2-0 in one kist in the month of Falgoon. With this variation he affirmed the report of the commissioners and directed that final decree should be prepared according to his judgment-the report and the maps of the commissioners were to be made part of the decree. A decree was drawn up in accordance with the direction of the Subordinate Judge and it was signed by the Subordinate Judge on the 31 July 1916. We are informed that from that date the defendants went on paying the rent fixed by the Subordinate Judge at the rate of Rs. 129-2-0 to the plaintiff.