MAHABIR RAM MARWARI Vs. BHADAI MANDER

JUDGEMENT

(1.) This second appeal arises out of a suit for rent. The plaintiffs are proprietors of one third of the tauzi where the rent claimed land is situated. The. defense was that by an arrangement between the landlords the rent claimed land was in exclusive possession of the proprietors of the remaining two thirds share of the tauzi and rent was payable to them alone and has been paid to them. The proprietors of the two-thirds of the tauzi were made pro forma defendants, but they were dismissed from the suit by the trial Court and no objection was taken to this order. Now the question is between the plaintiffs and the tenant defendants alone. The trial Court dismissed the suit accepting the contention of the tenant defendants, while on appeal the learned Subordinate Judge has decreed it.

(2.) In my opinion this appeal is concluded by the finding of fact. The learned Subordinate Judge has held that from the road cess return filed by all the proprietors it appears that up till 1911 the land was in joint possession of the entire body of landlords and he has further held that it has been shown that no arrangement was arrived at between the landlords as to the possession of this land by one to the exclusion of the other and therefore, he has held that the land is the joint property of all the co-sharers and the plaintiffs being admittedly owners of one-third of the tauzi are entitled to rent to that extent. The learned Advocate of the appellants first of all contended that the road cess return on which the learned Subordinate Judge has relied was inadmissible in evidence. There is no merit in this contention. The Road (Jess Act does not stand in the way of admission of this return which was filed by the entire body of landlords and the statement? made by all the proprietors can be used by one of them against the other.

(3.) The next contention has been that the tenant-defendants adduced evidence to show that they had been paying rent to the two-thirds proprietors only. It seems that the learned Subordinate Judge has not placed any reliance upon the receipts and in fact there is evidence to show that the plaintiffs have also realized rent from the tenant defendants. A dispute like this cannot be settled in a purely rent suit. It seems that the landlords are not pulling on well among themselves, and the question of joint or separate possession of land is one which they should settle in a properly framed suit. Till the matter is settled, the plaintiffs, in my opinion, are entitled to succeed. They are the recorded proprietors of one-third of the village and in the absence of anything to the contrary they are entitled to realize rent from the tenants. This will not in any way affect the right of the other co- sharers to have the dispute between them settled in a proper suit. The appeal is dismissed with costs.