TUNGAL Vs. CHANDRA BHAN

JUDGEMENT

(1.) THE plaintiffs sued the defendant for recovery of arrears of rent. THE point in issue was the amount of rent payable. THEre was another defence also that there were two tenants, Tungal and Partap, and the suit cannot lie against Tungal alone. THE defendant pleaded that the rent was only Rs. 57-8-0 and not Rs. 99 as alleged by the plaintiffs. THE plaintiffs produced a copy of a registered kabuliyat executed by Tungal. THE original was not produced but, as the lower appellate Court accepted the copy. I shall not enquire whether the copy ought legally to have been accepted or not. THE matter rested with the lower appellate Court. That Court held that the kabuliyat was enforceable. It, however, did not consider the circumstance that the kabuliyat was executed by only one out of two tenants. THE suit appears to be dishonest in so far that Partap has purposely been left out as he had not executed any kabuliyat. I do not think that when there are two joint tenants of a holding the rent of that holding can be enhanced by an agreement entered into between the landlord and only one of the two tenants. My opinion is that under the terms of Section 47 of the old Tenancy Act of 1901, to make an enhancement effective a registered agreement must be made between the landlord and every one of the non-occupancy tenants. For this reason the omission of one of the parties is also material. If Partap had been joined as a party there could have been a defence that the enhancement was illegal as regards Partab and, therefore, against both tenants. As regards the same holding two separate decrees could not have been passed: one against Tungal at an enhanced rent; and another against Partap at the original rent; and the defence would have been that between two joint tenants the joint rent cannot be distributed. It was argued on behalf of the plaintiffs-respondents by Mr. Damodar Das that the agreement to pay enhanced rent became valid because it had already been paid for three years. It is, however, well established that a suit for the recovery of rent has always a fresh cause of action and that the rent paid in previous years, if not lawfully leviable, does not bar a subsequent plea that the lower rate was payable. In my opinion the kabuliyat cannot be enforced as it was given by only one of two tenants entitled to the holding.

(2.) I set aside the decree of the lower appellate Court and restore the decree of the trial Court with costs to the appellant of this Court and of the lower appellate Court.