MT SUKHDEI Vs. BHIMANSHUDHAR SINGH

JUDGEMENT

(1.) This appeal arises out of a suit instituted by Babu Himanshudhar Singh, taluqdar of Shahmau Tekari, for recovery of arrears of under-proprietary rent from the appellants and respondents 2 to 5. The appellants are the mortgagors of the under-proprietary khata in respect of which the arrears are claimed and respondents 2 to 5 who are in possession of the whole khata on behalf of the appellants are usufructuary mortgagees. The plaintiff is the superior proprietor.

(2.) The defence was that a certain sum, namely Rs. 200 had been paid towards the arrears claimed and that remission had been granted on account of frist which should also be deducted from the amount of rent claimed in the suit. The suit was filed as long ago as 1937 but it has been considerably delayed owing to the fact that there were two remands to ascertain whether there had been remissions on account of frost or not. Finally the Civil Judge of Partabgarh held that although there had been remissions, the appellants were not entitled to any because they were under-proprietors and they could only get a remission on account of a calamity under the procedure laid down in Section 101, Land Revenue Act, which had not been resorted to in the present case. He accordingly decreed the suit for the arrears after deducting the amount actually paid but without allowing any thing for remissions.

(3.) It was also contended before him that, owing to the fact that the U.P. Tenancy Act had come into force while the suit was still pending the rights of the parties should have been determined under the new Act and, therefore, the liabilities of each of the defendants should have been separately determined by reason of Section 234, U.P. Tenancy Act. This plea was not accepted by the learned Civil Judge on the ground that the suit had been initially decided by the Assistant Collector before the enforcement of the U.P. Tenancy Act.