HAR SARUP Vs. TOHFA SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of suit for rent under the following circumstances: The plaintiff instituted a suit, in the year 1920, for ejectment against two persons Tohfa Singh and his minor brother Ram Chandra, under the guardianship of Tohfa Singh. In that suit both the defendants pleaded that they were occupancy tenants, and that there were other people besides themselves who were tenants of the holding. The plaintiff thereupon made an application that those people whoso nonjoinder had been pleaded, namely Bijai Singh and others might be made a party to the suit. The parties, after the joinder of additional defendants, came to terms and an agreement was drawn up on 2 August, 1921. Nothing, however, came out of that agreement, because the suit was dismissed for default. When it was restored on 9 August 1921, it was dismissed in terms of a compromise, to which only the plaintiff and the original defendants Tohfa Singh and Ram Chandra were parties. It was agreed that the defendants should have the status and position of occupancy tenants, but they should pay an enhanced rent, namely one of Rs. 85 per annum, while the previous rant was only Rs. 62-4-0.

(2.) After this the suit was instituted, out of which the present appeal has arisen. This suit was for recovery of arrears of rent for the years 1329 to 1331 and was against Tohfa Singh and Ram Chandra alone. For the year 1329 Fasli rent was claimed at the rate of Rs. 62-4-0 a year, while for the succeeding years the claim was made at the rate of Rs. 85 a years Tohfa and Ram Chandra again pleaded that some other persons, namely Bijai Singh and others were interested in the holding and should have been impleaded. They also pleaded that the rate of rent realizable was Rs. 62-4-0 a year and not Rs. 85 a year, claimed for two years. Again the plaintiff agreed to make Bijai Singh and others parties. After they had been impleaded, the plaintiff made an application to the Court of first instance asking for the framing of an issue on a point, namely whether Bijai Singh and others were really tenants of the holding. No such issue was framed. The suit was decreed against all the defendants at the rate of Rs. 85 a year on the ground that the defendants having taken the benefit of the status of occupancy tenants were bound to pay the enhanced rate of rent.

(3.) The defendants went in appeal before the learned District Judge. That Court was of opinion, that the plaintiff could not ask for an issue as to the status of Bijai Singh and others, nor could he ask for enhanced rent. The learned Judge pointed out, what was an evident error on the face of the record, that the plaintiff had been given a decree for arrears of rent for the year 1329 at the rate of Rs. 85 per annum, while he had claimed less. In the result, the suit stood decreed at the rate of Rs. 62-4-0 a year, against all the defendants including Bijai Singh and others. The plaintiff has come in second appeal. At the outset I may point out that no objection has been taken in the memorandum of appeal as to the omission on the part of the Court of first instance to frame an issue as to whether Bijai Singh and others were also tenants of the holding. It must be taken, therefore, that Bijai Singh and others, the added defendants, are tenants of the holding.