NIBARAN CHANDRA BANERJEE Vs. MOMINUDDIN HOWLADAR

JUDGEMENT

(1.) This appeal has arisen out of a suit for recovery of arrears of rent from 1337 B. S. to 1340 B. S. at Rs. 10-4.3 par annum with cesses and damages. The tenants defendants pleaded that they held the jama under the Howladar Mominuddin and paid rent to him. Mominuddin was therefore made a party as defendant 14. He claims that the defendants hold the land in Nim Osat Howla under him. It appears that this land is within a taluk which was partitioned under the Estates Partition Act. It was originally held under a howla which falls exclusively under a 5 1/2 gandas 2 kr. share of the taluk. The disputed jama was allotted to the plaintiff in the partition in his 6 annas share. The Butwara papers show that the howla was not held by the plaintiff before the partition. The suit was contested by defendant 14. He produced some dakhilas showing that he realized rent from the tenants. But the trial Court held that these dakhilas were collusive and that this howla had nothing to do with the plaintiff's share and the learned Munsiff accordingly decreed the suit for the rent as claimed. The lower Appellate Court dismissed the suit on the ground that Section 99, Estates Partition Act has no application except in cases where a share or a portion of share of a taluk was leased. Therefore the plaintiff is not entitled to ignore the taluk unless the estate is held in common tenancy in which case although Section 99 would have no application, still on equitable consideration the same principle would apply.

(2.) In this appeal it is contended in the first place that a wrong procedure was adopted by the Court below since the rent due was admitted, but the tenants pleaded that as the rent is due to a different landlord the proper procedure should have been for the tenants defendants to deposit the rent due and to direct the person to whom it is alleged to be due, to establish his title and on his failure to do so the rent should have been paid to the plaintiff. It appears, however, that the tenants plead that they have already paid the rent so that there is no question of depositing the rent. Thus the procedure adopted does not appear to be wrong in the particular circumstances of this case.

(3.) The other point raised on behalf of the appellant is that the onus has wrongly been placed on the plaintiff by the lower Appellate Court. Defendants maintained that they had paid rent to Mominuddin. The land in suit being included in the plaintiff's share on partition, and defendant 14 claiming an intermediate tenancy the plaintiff is entitled to the rent of the land included within his share either from defendant 14 who claims that the land is within his tenure or from the occupants of the land. Defendant 14 claims to hold under a different landlord but it does not appear that he paid any rent for the land and that any other cosharer is claiming rent from him on account of this tenure. The lower Appellate Court held that equitable considerations were in favour of the plaintiff as the Munsiff found that the estate was held in common tenancy and in that case any person accepting an interest in the land from the co-owners in possession must take it subject to the rights of the others to enforce a partition. The learned Sub-ordinate Judge, however, held that in this case there is no evidence that the estate was held in common tenancy. There is no evidence except the fact that the estate was partitioned by the Collector. But he held that there is no presumption in law that an estate was held in common tenancy from the mere fact of partition on the authority of the case in Rama Charan V/s. Pyari Mohan (1926)13 AIR Cal 433. That may be so. But in this case since the land is included in the area allotted to the plaintiff on partition, he is prima facie entitled to claim rent either from the occupant or from the (holders of any intermediate tenancy that has been established between him and the tenants. Such intermediate tenancy is still in existence after partition.