RAI KRISHNA BAHADUR Vs. HARI CHARAN RAUT

JUDGEMENT

(1.) MR. Hareshwar Prasad Sinha for the respondents having said that lie has no instructions, this second appeal has been barred ex parte. The plaintiff is the landlord to the extent of 2 annas 8 pies in an 8 annas patti in Taufir Maharajganj, and he claims one-third of the rent of the defendant. One of the grounds on which the suit has been dismissed is that the plaintiff is not entered in Register D as a proprietor to the extent of one-third share. The Munsif examined this question and found that the Kpatti being an 8 annas patti and not 16 annas patti, the plaintiff was in fact recorded for a 2 annas 8 pies share, i.e., one-third, in the patti and it appears in the course of his judgment that the defendant also admitted that one- third of his rent was payable to the plaintiff. So the suit should not have failed for this reason, and observations of the Subordinate Judge on this aspect of the case cannot be supported. The other defect for which the suit was dismissed is that it is said to be not maintainable, because the area of which the rent is used for is not the entire holding of the defendant but a part of a holding. The facts are that the holding is diara; according to the defence, which has been accepted by the Courts below, the total area is 20 bighas 5kathas 5 dhurs and of this in the year in suit it is said that 15 bighas was under water, 2 bighas10 hathas was sandy and unfit for cultivation, and approximately 2 bighas 10 kathas was cultivated. The defendant further alleged that for land under water rent was payable at 4 annas a bigha, for sandy land at 8; annas, and for culturable land at Rs. 4-10-0. Now the plaintiff claimed rent for 7 bighas 18 kathas at Rs 4-10 0, but the Munsif held that 2 bighas 10 kathas was under cultivation in the years in suit; that is to say, if the suit had been maintainable, the defendant would have been liable to pay rent at Rs. 4-10-0 for an area of 2 bighas 10 kathas, and of this rent the plaintiff would have been entitled. Now, in ordinary cases of naqdi rent, it has been held that the rent which a tenant is liable to pay is the rent payable for, the total area, and neither the area nor the rent can be split without the consent of both the landlord and tenant. Therefore, if a suit is brought in such a case for the rent of a smaller area, it is not maintainable because there is no tenancy of that area and no amount of rent can be said to be payable for that smaller area. But in bhaoli lands, on the other hand, where rent is taken varying according to the area cultivated in a particular season and the outturn of produce obtained, the fact that, a tenant's entire holding is of a larger area has not always been held to be an obstacle against his landlord getting a decree based on the outurn of a smaller area being the area from which crop was actually obtained; and the same principle may be applicable in the case of diara lands where the rent in a particular year varies according to the area under cultivation in that year. I think, therefore, that the suit should not have been dismissed outright put a decree should have been passed, leaving open the question of the total area of defendant's holding, for plaintiff's share of rent calculated as above.

(2.) THE appeal is, therefore, allowed in part; the plaintiff will get a decree accordingly for rent of 2 bighas 10 kathas with interest at 12? per cent, simple: but parties will bear their own costs throughout, as the plaintiff's claim was considerably higher than the amount now being decreed to him.