SINHA GOPE Vs. JAGESHWAR PRASAD

JUDGEMENT

(1.) This is a defendants second appeal from the decision of the learned Subordinate Judge of Begusarai reversing that of the Munsif of the same place in a suit for a declaration that the orders of the revenue Courts reducing the rent of the holding under Section 112A, Bihar Tenancy Act, are a nullity, being ultra vires.

(2.) The material facts leading up to this appeal are as follows: The plaintiffs are the proprietors of the holding in question which was, on the findings, constituted for the first time in 1919 at an annual rent of Rs. 84 after consolidating two holdings, one bearing an annual rent of Rs. 72 and another bearing an annual rent of Rs. 12. Harbhajan, who was the tenant of this reconstituted holding, died in 1985, leaving him surviving his two sons, defendants 1 and 2, and his grandson, defendant 3, son of defendant 1. Of the two plaintiff a, the second plaintiff has executed a usufructuary mortgage bond in favour of the defendant-second party for a term of years, ending with the close of the Fasli year 1349. Defendant 1 made an application for reduction of rent in 1939 on the ground that the holding had deteriorated in productive capacity. This application was made in the name of Harbhajan deceased, though, in fact, by defendant 1 himself. This was numbered as Case No. 756 of 1989. A subsequent application was filed by defendant 1, saying that Harbhajan was dead, and the applicant, defendant 1, had succeeded to the holding. It should be noted that the application had been made in Form No. 33, meant for an application under Section 112A(1)(c), Bihar Tenancy Act. No application for reduction under Section 112A(l)(d) in Form No. 34 was made. But the Bent Reduction Officer granted relief to the applicant under clause (d) of the section by reducing the rent to Rs. 46-8-0. It should also be noted that the plaintiffs, that is to say, the proprietors, were impleaded in the rent reduction proceeding but Hot the sudhbharnadar, the defendant-second party. On appeal by the proprietors, the case was remanded for a fresh decision. After remand, a petition for amendment was made to the effect that the application should be deemed to have been made under Clause (d) of Section 112A(1), Bihar Tenancy. Act. Even after remand, Form No. 34, meant for an application under Clause (d) of the section, was not used; but, ultimately, the orders of the Rent Reduction Officer reducing the rent to RS. 46-8-0 were maintained by the appellate and the revisional Courts. It was in the revisionel Court, before the learned Commissioner, that the plea of defect of parties on the ground that the sudhbharnadar had not been impleaded was raised for the first time. This plea was negatived on the ground that it had been raised too late.

(3.) Two suits were filed, one being Title Suit No. 157 of 1943 against the tenant- defendants as first party and the sudhbharnadar as the defendant-second party, and another being Bent Suit No. 299 of 1933 for recovery of arrears of rent, for the years 1346 to eight annas kist of 1350 Fasli. The rent suit was filed by the first plaintiff only; but, subsequently, defendant 7 in the suit, the sudhbharnadar, was transposed as a co-plaintiff. In the title suit, the plaintiffs claimed the declaration that the orders of the revenue Courts reducing the rent from Rs. 84 to rupees 46- 8-0 were ullra vires for the reasons (1) that all the landlords had not been impleaded, inasmuch as the sudhbharnadar, the defendant-second party, had not been named as the landlord in the column meant for showing the names of the landlords of the holding; (2) that all the tenants had not been impleaded, inasmuch as the application had been made originally in the. name of the deceased Harbhajan which was subsequently amended in the name of defendant 1 only; and (3) that the application as made by defendant 1 was in Form No. 83, meant for a case coming within the purview of Clause (c) of Section 112A(1), Bihar Tenancy Act, and that, therefore, the orders of the revenue Courts, purporting to have been made under the provisions of Clause (d) of that section, were a nullity.