Nos. 36 AND 150.

1. These two appeals are preferred by the plaintiff in suitsfor rent filed by her against the defendant based on two qabuliats executed byhim in her favour on 3rd Bhadra 1299 (1892). Under these qabuliats thedefendant agreed to become tenant of the plaintiff as darpatnidar andnimhowladar respectively of the lands in Kismat Daychora held by the plaintiffunder the maliks of mudafat Keval Ram. The contentions of the defendant were:

(1) that the relationship of landlord and tenant had ceasedbetween the plaintiff and himself and that he was no longer bound to pay therent reserved by the kabuliat, and

(2) that he had in fact paid the rent up to the end of thethird quarter of 1311.

2. The Courts below have agreed in dismissing theplaintiffs suits and the plaintiff has appealed.

3. The facts which are undisputed are as follows: The parentestate Taluk Kalika Prosad had been for very many years past held by theco-sharers in separate portions. Whether there was any regular partition orwhether it was a mere matter of arrangement does not appear. The Taluk KalikaProsad was thus divided into three equal shares, mudafat Kali Kanta, mudafatJagat Chandra and mudafat Keval Ram. We are only concerned with the last namedmudfat Keval Ram, in which the co-sharers were Kalitara Chowdhurani one half,Kailash Chandra one-third and Brojo Lal one-sixth. From these co-sharers theplaintiff or her predecessors-in-title obtained leases of their respectiveshares. The leases under which the plaintiff holds are a howla potta dated 12thFalgoon 1281 (1875) of Brojo Lals one-sixth, a howla, potta dated 18th Baisakh1284 (1877) of Kailashs one-third, and a putni talukdari potta dated 25th Pous1285 (1879) of Kalitara Chowdhuranis one-half. Thus plaintiff has putni rightsas regards one-half and howla rights as regards the other. Under her thedefendant became darptanidar and nimhowladar by the qabuliats above mentionedin respect of the lands comprised in them and now the subject of these suits.

4. In 1905 a partition was effected of the parent estateTaluk Kalika Prosad by the Collector under the provisions of the EstatesPartition Act (V of 1897 B.C.) and the lands in suit Kismat Daychora wereallotted to the co-sharers or some of them who had previously held mudafatsKali Kanta and Jagat Chandra, but who had not held any portion of mudafat KevalRam. It was argued for the defendant that by reason of such partition the titleof the plaintiff under her leases above mentioned had in some way determined.It was not explained how this could be the case. The plaintiff was no party tothe butwara proceedings and could not be bound by them. It was also concededthat the co-sharers to whom the lands in suit were allotted had as yet taken nosteps against the plaintiff or the defendant as her tenant to disturb thedefendants possession or dispute the plaintiffs title. Under thesecircumstances it is obvious that the defendant cannot set up the butwaraproceedings or anything that was done in them as an excuse for the non-paymentof his rent to the plaintiff under the qabuliats. The Subordinate Judge hasfallen into an error. He appears to think that the plaintiff was only entitledto 2/3rds of mudafat Keval Ram under the leases to her or to her husband. This,as we have shown, is erroneous and contrary to the admitted facts. Theplaintiff is entitled in putni or howla right to the whole mudafat. TheSubordinate Judge proceeding on this erroneous assumption has held that Section99 of the Estates Partition Act applies to the case. It clearly cannot apply.Nor are we concerned with the right of some of the co-sharers to demand apartition of the parent estate, or the bearing of Section 7 of the Act upon theproceedings. The title of the plaintiff is so far unaffected by them, and shehas a perfect right as against the defendant to recover rent for the lands ofwhich she gave him possession, and of which he still holds possession under theleases which she granted. The case of Hridoy Nath Shaha v. Mohobutnessa Bibee20 C. 285, is distinctly in paint, and supports the opinion which we have aboveexpressed. It has been found that the defendant has in fact paid the rent up tothe end of the third quarter of 1311 and that finding we must accept in secondappeal.

5. It was suggested that the co-sharers to whom these landshave now been allotted were necessary parties to these suits. We cannot seethat, that is the case. It certainly was not incumbent on the plaintiff, who inthese suits claims no manner of relief against them, to bring them, upon therecord. The matter at issue is entirely between the plaintiff and thedefendant.

6. We think that the decision of the Courts below iserroneous. The appeals must be allowed and decrees passed in favour of theplaintiff for the rent for the last quarter of the year 1311 and the whole ofthe year 1312 with proportionate costs in all the Courts with interest on thedecrees at 6 per cent, per annum until payment.

No. 149.

7. The questions arising in this appeal are the same as inAppeals Nos. 36 and 150 of 1908 of which we have just disposed. The judgment inthose appeals applies mutatis mutandis to this appeal. This appeal is allowedand a decree passed in favour of the plaintiff for the rent for the lastquarter of the year 1311 and the whole of the year 1312 with proportionatecosts in all the Courts and interest on the decree at 6 percent, per annumuntil payment.

Nos. 35, 147 AND 148.

8. The questions in these appeals are the same as in theother Appeals Nos. 36, 149 and 150 of 1908 but owing to the amounts at stakebeing less it is conceded that no second appeal lies. They are accordinglydismissed but without costs.

.

Aimanaddi Patari vs.Nabin Chandra Gope and Ors. (10.10.1909- CALHC)