Kesar Kuar v. Kallu Ram

Lindsay and Sulaiman, JJ.:— This is a defendant's appeal arising out of a suit for arrears of rent brought by Kallu Ram against Musammat Kesar Kuar. The suit was dismissed by the Assistant Collector, but on appeal it was decreed by the District Judge. His findings on some of the points were not clear. Accordingly, a former Bench of this Court framed three issues and remanded the case with directions that the learned Judge should dispose of the case on the lines indicated by the issues.

The learned District Judge has upheld his former decree.

The plots in dispute were recorded as the tenancy of one Sri Ram and, on his death, were recorded in the name of his widow, Musammat Kesar Kuar. Kallu Ram was recorded as the lambardar and the proprietor of the mahal in which these plots are situated. In 1917 there was a dispute between the parties in the civil court and the matter was referred to the arbitration of three arbitrators and an award was pronounced on the 31st of May, 1918, followed by a decree of the civil court, ruder this decree Musammat Kesar Kuar was given a halt share in the proprietary interest in the mahal.

The learned District Judge has found, and his finding is one of fact, that the defendant has failed to prove that she had any proprietary interest in the mahal prior to the award of 1918. She must, therefore, be treated as a tenant of the plots prior to that date. Since then, however, she has become a co-sharer entitled to an equal share with Kallu Ram in the proprietary interest in the mahal.

The learned District Judge has given the plaintiff a decree for half the amount of rent due on account of these plots, holding that the tenancy to the extent of one half has become merged in the proprietary interest acquired by Musammat Kesar Kuar since the award.

The point which has been urged before us on behalf of the appellant is that having become a proprietor in the mahal she has ceased to be a tenant, and the only remedy now open to the plaintiff is a suit for profits in which the rent could be taken into account and adjusted. It is further urged that a person cannot both be a zamindar and a tenant in one and the same mahal. But there cannot be a complete merger of two rights unless the two are coextensive. We are of opinion that this point is concluded by a series of authorities, which it is not now possible to disturb. We may refer to the case of Mahabir Singh v. Ahsanullah, followed subsequently in S.A No. 303 of 1918, decided on the 28th of February, 1918, and Abul Hasan Khan v. Bhura. We may also mention that the Board of Revenue has accepted the same principle, as shown by the case of Jamna Prasad Rai v. Damn. All these cases are authorities for the proposition that there is nothing in law to prevent a co-sharer in a coparcenary mahal from having tenant rights of any kind and being liable to the payment of rent either to another co-sharer or to the general body of co-sharers, and that if a tenant subsequently acquires proprietary rights in the land his tenancy does not automatically come to an end in its entirety.

In view of these authorities we are of opinion that this appeal must be dismissed.

The result, therefore, is that this appeal is dismissed with costs.

Appeal dismissed.