Kulwant Sahay, J.:— (After stating the facts, as set out above, proceeded as follows):—
In the first place it is doubtful whether a proceeding under section 105 of the Bengal Tenancy Act is a suit. In Cheodditti v. Tulsi Singh it was held by a Division Bench of the Calcutta High Court that an application under section 105 of the Bengal Tenancy Act cannot be regarded as a suit. In the second place section 141 of the Code of Civil Procedure provides that the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. The proceeding in the present case was initiated in a Revenue Court before a Revenue-Officer and not in a Court of civil jurisdiction, and, in my opinion, section 141 of the Code has no application to applications under section 105 of the Bengal Tenancy Act. It has, however, been pointed out by the learned Vakil for the respondents that section 107 of the Bengal Tenancy Act provides that in all proceedings under sections 105, 105(A) and 106, the Revenue-Officer shall, subject to rules made by the Local Government under this Act, adopt the procedure laid down in the Code of Civil Procedure for the trial of suits. Now, this section makes the procedure for the trial of suits, laid down in the Code of Civil Procedure, applicable to proceedings under section 105 of the Bengal Tenancy Act and not to applications initiating the proceedings. In my opinion it does not make the provisions contained in the Code of Civil Procedure relating to the verification of a plaint applicable to such proceedings. But even assuming that the provisions contained in Order VI, rule 14, of the Code, relating to the signing of the plaint are applicable, I think the provisions have been materially complied with in the present case. There can be no doubt that Sabha Singh and Surajnath Singh did authorize Panchoo Singh to sign the application on their behalf, as was found by the learned Revenue-Officer. The conduct of those two persons before they filed their applications on the 8th and 17th September, 1920, makes this point clear. As has been pointed out by the Revenue-Officer, these persons appeared before him on the 26th July, 1920 and proceeded with the trial in the usual way without raising any objection. If that is so, then any formal defect in signing or verifying the application will not make the application incompetent. As was pointed out by the Privy Council in the case of Mohinimohan Das v. Bungsi Baddan Saha Das there is no rule that a person named as a co-plaintiff is not to be treated as a plaintiff unless he signs and verifies the plaint. Section 188 of the Bengal Tenancy Act provides that:
“Where two or more persons are joint landlords, anything which the landlord is under this Act required or authorized to do must be done either by both or all those persons acting together, or by an agent authorized to act on behalf of both or either of them.”
Here all that was necessary was that the application under section 105 should be filed by or on behalf of all the joint landlords, this was the thing which the landlords were authorized by the Act to do. The application appears to have been filed by all of them and the subsequent conduct of some of the joint landlords in repudiating the authority of the others to sign the application on their behalf and retiring from the case will not attract the provisions of section 188 so as to defeat the application if the other joint landlords choose to proceed with it.
As regards the observation of the learned Special Judge that if Sukhram Singh is the managing member of the joint family consisting of himself, Panchoo Singh, Sabha Singh and Surajnath Singh, he was a necessary party to the application, it is to be noted that it is admitted by both parties before us that Sukhram Singh is not a recorded proprietor. All the recorded proprietors of the tauzi are named as applicants in the application and the absence of the name of Sukhram Singh, even if he be the managing member, will not make the application illegal if the persons who are recorded as proprietors are all joined in the application. I am, therefore, of opinion that the learned Special Judge was wrong in holding that the application under section 105 could not be maintained by reason of the provisions of Section 188 of the Bengal Tenancy Act. It appears from his judgment that no ground was taken before him as regards the merits of the case, the only ground upon which the decision of the Revenue-Officer was assailed before him was that the application could not be maintained under the provisions of Section 188 of the Bengal Tenancy Act. This ground having failed, the decision of the Revenue-Officer must be confirmed.
The result is that the appeal succeeds, the decision of the Special Judge is set aside and that of the Revenue-Officer is restored. The appellants are entitled to their costs in this appeal and in the Court of appeal below. The order for costs made by the Revenue-Officer will stand.
Dawson Miller, C.J:— I agree.
Appeal allowed.