PYARI MOHAN SING AND ANOTHER Vs. MIRZA GAZI AND OTHERS
HIGH COURT OF CALCUTTA
PYARI MOHAN SING AND ANOTHER
MIRZA GAZI AND OTHERS
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(1.) These were suits for arrears of rent of the years 1274 and 1275 (Tipperah era), and they were brought at one and the same time before the same Revenue Court for the full amount of the arrears said to be due for the years I have mentioned; but in the one case the plaintiff sued for a 10-anna, and in the other the plaintiff sued for a 6-anna, share of the same rents. The defendants in each of the suits denied that any arrears of rent were due, and urged that the suits could not proceed separately, because the plaintiff in the two suits were proprietors of an undivided estate, and because the kabuliyat on which the plaintiffs sued was given to the plaintiffs jointly, and not separately. The first Court held that the defendants had agreed to pay the rents separately, and had not proved that they had paid those rents. The first Court gave the plaintiffs in each case a decree.
(2.) The lower Appellate Court took up the two cases together, and held that, inasmuch as the two plaintiffs had collected the rents ijmali up to the year 1274, they could not sue separately, but together, and because they did not so sue, the lower Appellate Court dismissed both the suits.
(3.) In appeal before us it is urged that when the defendants had agreed and acquiesced in the division of shares, the lower Appellate Court was wrong in dismissing the plaintiff's claim. If the special appeal had been entertained by us simply on this ground, it is probable that we should have had to remand the case to the lower Appellate Court, because it appears to us that that Court has not given any judgment upon the issue distinctly raised between the parties as to whether or not there was an agreement or acquiescence on the part of the defendants to pay rents to the proprietors separately in the shares which the proprietors claimed, but we think that the lower Appellate Court's judgment was wrong on other grounds.;
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