The Judgment of the Court was as follows:—
The Plaintiffs are 4-anna share-holders of a talook within which the first three Defendants have a raiyati holding. They purchased a 2-anna share of this talook in 1287 and the other 2-anna share in 1296. They say that in 1287 the first Defendant executed a kabuliyat by which he argeed to pay to the Plaintiffs their share of the rent separately and also to pay an increased rent if on measurement an excess area was found. They allege that the area of the holding has been found by measurement to be in excess of the area for which the Defendants were paying rent, and they bring this suit for an enhancement of the rant of the holding including the increased area and to get their share of the enhanced rent from the Defendants.
It appears to be Conceded that the different share-holders were Collecting their share of the rent separately from the Defendants. Both Courts have dismissed the suit on the ground that the Plaintiffs as fractional Co-sharers cannot maintain this suit for enhancement. The only question we have to determine in this appeal is whether the suit is maintainable. Apart from the kabuliyat and in so far as it rests on the agreement of the Defendants to pay the Plaintiffs their share of the rent separately, we think that this suit is clearly not maintainable as a suit for enhancement or as a suit for the rent of the area said to be in excess of the area for which the Defendant was paying rent. This was held in the case of Goyal Chandra Das v. Umesh Narain Chowdhury (1). The agreement of the Defendant to pay the Plaintiffs their separate share of the rent did not Constitute a separate tenancy under the Plaintiffs. Under sec. 30 of the Tenancy Act, the landlord of a holding of an occupancy raiyat may, subject to the provisions of the Act, institute a suit to enhance the rent on certain grounds, the ground alleged in this case bring that the Defendant was holding at a rate which was below the prevailing rate now, the Plaintiffs are not the landlords of this holding within the meaning of this section; they are only some of the landlords.
The holding is an entire one and there is no separate holding as regards the share of the Plaintiffs. That was held in the case of Hatri Charan Bose v. Rajah Ranjit Singh .
The Plaintiffs cannot, therefore, enhance the rent of the entire holding, because under sec. 188 all the landlords must join as Plaintiffs in a suit for that purpose and they cannot enhance the rent of their share of the holding as there is no separate holding under them.
The case of Panchanon Banerjee v. Raj Coomer Guho (3) which was relied upon by the Appellants is clearly distinguishable. That case turned entirely upon the particular terms of the kabuliyat, and it was moreover a suit to enhance the rent on account of the Plaintiffs' share of a tenure and had nothing to do with a raiyati holding.
Then it is Contended that the Plaintiffs are entitled according to the terms of the kabuliyat and apart altogether from the provisions of the Tenancy Act to enhance the rent of the Defendants. The kabuliyat which has not been quite Correctly translated in the translation put before us was for a term of three years from 1287 to 1289. It deals with the holding as an entire holding and the first Defendant who alone executed it agreed to pay the Plaintiffs separately their share of the rent. Then, there is another provision upon which the Appellants relied which is to this effect:—“If, according to your measurement jamabundi, the jama of my jote is increased, I shall pay rent and give kabuliyat without objection according to the increased rate.” That we think, gives the Plaintiffs no right to maintain a suit of this description.
It merely provides, we think, that if the rent of the entire holding is increased, increased rent shall be paid to the Plaintiffs for their share in the holding, but the rent cannot be increased otherwise than under the terms of the Act. There is no agreement to pay any specific amount of rent to the Plaintiff at any future time. So far, therefore, as the terms of the kabuliyat are Concerned, we think it gives the Plaintiffs no right to maintain a suit of this description either for enhancement of the rent of the holding or for the rent of the increased area) nor do we think that the Plaintiffs would be in any better position, so far as regards their right to bring a suit for this description, if they limited their claim to recover rent for an excess area in proportion to the two anna share of the talook in respect of which the kabuliyat was given.
The case of Tejendra Narain Singh v. Bakai Singh (4) which the Appellants relied upon is quite distinguishable. There the tenant had given a kabuliyat before the Tenancy Act came into force for a term of seven years which expired after the Tenancy Act came into force and he agreed to pay rent separately to the Plaintiff for that term of seven years, and after the expiry of that term to pay a fixed sum in case he failed to execute a fresh kabuliyat. The suit was brought for that fixed sum upon the express terms of the agreement, and it was held that as the kabuliyat was given before the Tenancy Act came into operation and there was an express agreement to pay, fixed sum on the expiry of the term, the Plaintiffs Could maintain the suit on the terms of the agreement apart from the provisions of the Tenancy Act. That is not the case here as we think that no suit either to enhance the rent or to recover rent for the alleged excess area Could be brought otherwise than under the terms of the Tenancy Act. The decision appealed from, therefore, appears to us to be right, and we dismiss this appeal with Costs.
Appeal dismissed.