RISHEE CASE LAW Vs. GOLAM ALI MIRDHA

JUDGEMENT

(1.) This is a suit brought by a cosharer landlord under Section 148A, Ben. Ten. Act, to recover arrears of rent. The plaintiff has impleaded the two tenants of the land whose names are recorded in the Record-of-Rights, and has made his cosharer landlords pro forma defendants. One of the two tenants-defendants has not appeared. The other has pleaded that he is entitled to an abatement of rent on account of diluvion. The fact of diluvion has been established. It appears, however, that there are two other co-tenants of the holding who are not parties to the suit, and the plaintiff contended that the contesting defendant is not entitled to an abatement of rent in the absence of the other cosharer tenants. The trial Court upheld the plaintiff's contention, and passed a decree for the full arrears of rent claimed without abatement. On appeal the decree of the trial Court was set aside, and the suit was remanded for the ascertainment of the amount of the abatement to which the defendant was entitled. From that decree the plaintiff has preferred the present appeal.

(2.) The case was argued exhaustively before us, and we have no doubt what our decision should be. It is conceded by the appellant that if all the co-tenants are parties an abatement of rent may be claimed by the tenants either in a separate proceeding or in a suit for rent, and by the respondent that if Section 52, Ben. Ten. Act, is applicable one co-tenant cannot claim abatement in the absence of his co-tenants, and that the present case is covered by the decision of this Court in Bhoopendra Narain Dutt V/s. Roman Krishna Dutt [1899] 27 Cal. 417. <JGN>Page</JGN> 2 of 2 The respondent contended, however, that this is not a suit to which the Bengal Tenancy Act applies, and that under the general law the respondent is entitled to claim proportionate abatement. We are of opinion that Section 52, Ben. Ten. Act, does apply to the present suit, and that the decision of the trial Court was correct. But if it be assumed, contrary to our opinion that the present suit is not brought under the Bengal Tenancy Act, but under the general law Enayutoollah V/s. Elahee Buksh [1864] W.R. Act X, Rule 42, Salimullah Bahadur v. Kali Prosonno [1915] 22 C.L.J. 569, Kailash Ghandra Mitra V/s. Brojendra K. Chakravarti , that circumstance will make no difference, for we think that the principles laid down in Bhoopendra Narain Dutt V/s. Romon Krishna Dutt [1899] 27 Cal. 417, would equally be applicable. In that case Banerji, J., observed: I may add that, so far as the landlord's right to claim enhancement or increase of rent is concerned, that right can be claimed only in a suit brought by all the joint landlords. It is true that under the Bengal Tenancy Act that is so under the express terms of Section 138 of that Act; but under the law as it stood before the passing of the Bengal Tenancy Act, the rule was the same, and the rule was based upon considerations of justice. And if that was so, there is no reason why similar considerations should not be given effect to in the converse case of a tenant seeking to obtain against one of several joint landlords abatement of rent, though such a case may not be provided for by any express provision of the Tenancy Act applicable to it.

(3.) In Kisho Prasad Singh V/s. Ramdeni Singh A.I.R. 1923 Pat. 397, Das, J., also stated that the only principle which underlies Section 188 of the Act is that where two or more parsons have a joint right between them, they cannot assert it except jointly. That principle is recognized in Section 52 of the Act and quite accept that if two or more coshare tenants have a joint right for abatement of rent, they can only assert that right in a suit to which all the tenants [are parties.