TANWANGINI DEBI Vs. ABHOYA CHARAN SARDAR

JUDGEMENT

(1.) In this case, the plaintiffs are the 12 annas cosharer landlords and they bring their suit for vent for 1329 to 1332 B.S. to the extent of their share basing their claim upon the terms of a kabuliat of 23 November 1905. The terms of that kabuliat are to this effect : the area which is being 13t or settled is 2134 bighas. The tenant states that he had been in possession of that land before from the landlords predecessor. The rate of rent is 11 annas two and half gandas per bigha and, on the 2134 bighas the jama is Rs. 1483. There is a clause in the kabuliat to this effect: If it becomes necessary to make any survey from the Government or from your Sarkar, that is, the landlords: I shall be present in p3rson and shall cause the survey to be made and I shall pay the costs of survey. If, on measurement, the area be found to be less, I shall get abatement; if there be increase, then I shall pay rent separately at the aforesaid fixed rate.

(2.) In this case, the first thing that happened was a suit framed under Section 148-A, Ben. Ten. Act, and brought by the four annas landlords in 1918. The present plaintiffs were parties defendants in that suit. But the present plaintiffs took no interest in the suit and, in the end, what happened was that the four annas landlords were met by a defence on the part of the tenant that the area in his possession was less than the amount mentioned in the kabuliat. Thereupon, by a process of reasoning which does not seem to be altogether watertight, a local investigation was ordered and it was found that the area was, in fact, 1,700 bighas and no more upon which basis the four annas landlords got a judgment for their share of the rent on the footing that the total rent must be reduced from Rs. 1,483 mentioned in the kabuliat to Rs. 1,228. The first question and the most important question to be considered in this case is what is the effect in law of that decision. Mr. Roy who appears for the defendant appellant contends before us that the effect in law as between defendant and defendant in that suit was that there was a fresh settlement or assessment of rent and that the position was just as though a suit had been brought and a re-assessment of the rent had been arrived at which was binding upon the parties. Mr. Roy Choudhuri who appears for the plaintiffs respondents contends on the other hand that, while it is true that the present plaintiffs were parties to that suit they were parties for the purposes of Section 148-A, Ben. Ten. Act, only and that the judgment in that suit, whether it is right or wrong, is not as between his clients and the tenant any assessment of rent upon a new basis : the judgment may be made binding between the tenant and the four annas landlord, but as between the 12 annas cosharers and the tenant it is not a judgment which operates as a fresh assessment.

(3.) In my opinion, the view pressed upon us by Mr. Roy Choudhury is to be preferred. When one looks at ?the purpose of Section 148-A, Ben. Ten. Act, one finds that its purpose is this : to enable a co-sharer landlord to get the advantage of the right to sell the holding notwithstanding that he is unable to get his co-sharers to join with him as plaintiffs in instituting a suit. The section is intended to deal with cases, in particular, where the plaintiff cannot find out whether lent is due to the other cosharer landlords whether it has been paid or whether it has not been paid, and the consequence is that he may bring his suit asking for the whole of the rent but in the end limiting himself to proceed with his suit for his share only and to get the right to sell the holding. In the present case, if it be assumed for the sake of argument that the present plaintiffs who were defendants in the previous suit had been in receipt of their proper proportion of the rent at the kabuliat rate, then, when the four annas landlords joined them as defendants, we are to ask ourselves did they by staying away and taking no part in that litigation run the risk that the judgment obtained by the four annas cosharers would operate as against them as a new assessment of the rent of the holding. I am not prepared to say that it would so operate. It seems to me that, in a case under Section 148-A, Ben. Ten. Act, to hold that it would operate as a new assessment of rent between co- defendants would be carrying the law further than there is any authority for so doing.