P L D 1967 Dacca 23 (PLP)

At the hearing of this appeal the learned Advocate for the appellant has argued that with regard to plot No. 194 the defence case was that defendant was a tenant under the plaintiff in respect of the said plot. Plaintiff's claim, as accepted by the appellate Court below, was that defendant was a mere adhi bargadar in respect of the aforesaid plot of land. The relevant document on which the jural relationship between the plaintiff and the defendant is sought to be ascertained has been marked as Exh. A. Because of the importance of this document I had the same translated into English and learned Advocate for the appellant was kind enough to do so himself. I direct that the said translation shall now form part of the record of this appeal. On a perusal of the contents of the document, namely, Exh. A, I have no. manner of doubt, whatsoever, that the relationship between the plaintiff and the defendant was that of a bargadar and not that of a landlord and tenant. The appellate‑court below has given good reason as to why it has come to the conclusion that the defendant was a bargadar and not a tenant. To my mind, the document clinches the issue, because, in the first place, there is no stipulation for rent and, secondly, all that it indicates is that for a fixed period half the produce was stipulated to be paid to the plaintiff. My attention was drawn to the proviso to subsection (17) of section 3 of the Bengal Tenancy Act, which runs thus:‑ "Provided that a person who, under the system generally known as `adhi', `barga' or 'bhag' cultivates the land of another person on condition of delivering a share of the produce to that person, is not a tenant, unless‑ "(i) such person has been expressly admitted to be a tenant by his landlord in any document executed by him or executed in his favour and accepted by him, or (ii) he has been or is held by a civil Court to be a tenant." It was sought to be argued that there was another document produced by the plaintiff (marked as Exh. 3), which would prove that the relationship between the plaintiff and the defendant's predecessor‑in‑interest was that of a landlord and tenant. Exh. 3 is a deed of surrender, called, an Istafanama, by which the persons who held the land under the plaintiff surrendered the land, and it has been held by the appellate‑court below that the latter never possessed the suit‑land thereafter. This puts an end to the cases of the said persons. Neither the defendant nor his predecessor was, however, a party to the deed of surrender and it has been argued that his predecessor‑in‑interest has been described as a tenant in the document, which was accepted by the plaintiff. On this basis it was argued that defendant was a tenant of plaintiff and not his adhi‑bargadar. On scrutiny, this argument would be found to be wholly untenable. The proviso to subsection (17) of section 3 of the Bengal Tenancy Act, quoted above, has no manner of application to the facts of this case. The aforesaid section defines a tenancy and makes stipulation for payment of rental a conditio sine qua non for the creation of tenancy. The proviso, however, puts an embargo upon persons who cultivate land under a system generally known as "Adhi", "Barga" or "Bhag", when the land is taken on the basis of delivering a share of the produce to the landlord, from claiming that they are tenants. Anybody who is described as Adhiar, Bargadar or Bhagdar, is prevented from claiming that he is a tenant within the meaning of section 3 (17). But, in the circumstances mentioned in clause (i) of the proviso, the bar is removed and nothing more is done. It does not, contrary‑wise, absolve defendant from proving that, in fact, he is tenant. Clause (i) of the proviso merely means that if there is an admission by the landlord in any document executed by him or executed in his favour and accepted by him admitting such a person to be a tenant, then, notwithstanding his description as an Adhiar a Bargadar or a Bhagdar, he would not be shut‑off from contending that he is a tenant. Even then, the person described as holder of Adhi, Barga or Bhag, is called upon to prove that he is a tenant by proving the necessary ingredients which go to the making of a tenancy. In this case, however, the question does not arise because in Exh. A the defendant has not been described as the holder of Adhi, Barga or Bhag. Plaintiff could not have prayed in aid the proviso to section 3 (17) to stop the defendant from contending that he is a tenant if he could otherwise prove the, creation of a tenancy as between him and the plaintiff. One must, therefore, of necessity, fall back upon the definition of a tenant and ask the question: Is defendant holding the land on payment of rent or is he merely holding the land on condition of delivering a share of the produce to the plaintiff? This is the line of distinction. I, therefore, hold that the appellate Court below has correctly held that the predecessor of the defendant was merely a Bargadar under the plaintiff. This point, therefore, has no substance. I now come to the only other point, which was canvassed on behalf of the appellant, namely, that the suit is incompetent in respect of plot No. 111 and that the appellate Court below mis directed itself in decreeing plaintiff's prayer for partition of the suit‑land in respect of a specific portion of the plot, which has been claimed by him. The argument of the defence in this behalf, which found favour with the trial Court, is rather ingenious. The trial Court has non‑suited the plaintiff, in this behalf, on the ground that all the co‑sharers in respect of the plot have not been impleaded in the suit. This is a point, which has also been canvassed before me. One fact, however, stares one in the face, and it is this, that the existence of any other co-sharer does not appear from the records of this case. The parties to the suit have not made such a case. In fact, the defendant has claimed the entire plot No.

111. This means that defendant's case is that there is no co‑sharer in respect of plot. Plaintiff has, however, claimed only 5 decimals of land out of the said plot. On a physical calculation the trial Court has discovered that a residuum of 2 decimals of land would ensue on a computation of the figures that have been given by the parties to the suit. True, but it does not follow that, of necessity, there must be another co‑sharer in existence with regard to the aforesaid 2 decimals of land which appears to be a surplus on actual measurement of land as claimed by the parties. In any event, there is nothing from which one can deduce that there is, in fact, any other co‑sharer in respect of the same plot. In this connection, it is important to remember that defendant has claimed plot No. 111 in its entirety. This being the position, I hold that the appellate‑court below has rightly decreed the claim of the plaintiff for partition of the suit‑land in respect of plot No. 111, in so far as his claim for 5 decimals of land thereof is concerned. There is no substance in the argument that the prayer for partition is incompetent without impleading a co‑sharer whose existence has not been proved and who may not exist at all. These are the only points which have been urged before me and I overrule them. The appeal, therefore, fails on the points canvassed before me and is dismissed without any order as to costs. Leave for appeal under clause 15 of the Letters Patent is refused. The connected rule is discharged. K. B. A. Appeal dismissed.