A suit for arrear of rent may be maintained to enforce the personal liability of the tenant to pay rent, even if a decree enforcing the charge on the holding under Sec. 65 of the Bihar Tenancy Act cannot be made.

Ramaswami, J.

1. The question to be examined in these appeals is whether the plaintiff landlord is entitled to a money decree against the defendants for the years alleged.

2. It is not controverted that plot No. 874, khata No. 157, area 3.40 acres, was recorded in survey in the name of Gena and Debi Singh in equal shares. The plaintiff brought Rent Suit No. 25 of 1947 against the heirs of Gena with respect to half the area comprised in khata No. 157. The heirs of Debi Singh intervened in the suit and claimed that they had purchased by a registered kebala dated 21st January 1904 the interest of Gena. The plaintiff had brought Rent Suit No. 28 of 1947 with respect to the other half share of Khata No. 157 against the sons and grandsons of Debi Singh who were recorded in survey papers. The trial Court gave a decree in favour of the plaintiff against the heirs of Debi Singh in both the suits. The decision of the trial Court has been reversed in appeal by the learned Subordinate Judge who held that the suits were not maintainable and the plaintiff was not entitled even to a money decree in either of the suits.

3. On behalf of the plaintiff who has instituted the present appeals learned Counsel addressed the argument that the lower appellate Court was wrong in dismissing the suits outright, but, on the contrary, the plaintiff should have been granted money decrees for the actual arrear of rent due from the defendants. In my opinion the argument addressed by the learned Counsel is well founded and must prevail. It is important to remember that a suit for arrear of rent is a suit of a double character It is ordinarily a suit to enforce the charge upon the holding which is created by the provisions of Sec. 65 of the Bihar Tenancy Act; and a decree which has the effect of enforcing this charge can only be made when the plaint is framed in such a manner as to comply exactly with the provisions of Sec.148 of the Bihar Tenancy Act. But the suit does not necessarily fail because a decree cannot be made to enforce the charge in such a manner as to entitle the purchaser at a sale in execution to annul all incumbrances. The suit is also a suit to enforce the personal liability of the tenant to pay a certain sum of money to the landlord and a decree may be made enforcing this liability where a decree cannot be made enforcing the charge under Sec. 65 of the Act. In this case there is no evidence that the plaintiff landlord was aware of the kebala executed by Gena in favour of the heirs of Debt Singh. When the suit was heard a witness was examined on behalf of the defendants to prove that the purchase was made and the sale deed was produced in Court at that stage. It is the admitted case that the defendants were in possession of the land and enjoyed the usufruct thereof for the years claimed. In a case of this kind it is proper that a money decree ought to be granted to the plaintiff for the arrears of rent claimed against the defendants.

It should be noticed that Rent Suit 25 of 1947 is concerned with the rest of the area of plot No. 874 of Khata No. 157 and that Suit has been brought by the plaintiff against the sons and grandsons of Debi Singh who has been recorded in the survey. In my opinion this case falls within the principle enunciated in Jeonandan Singh V/s. Janki Singh, 17 Pat 451 in which the Full Bench granted money decree to the landlord since there was an issue between the parties with respect to the question of area and rental. The facts involved in the present appeals are closely parallel to the material facts upon which the decision of tile Full Bench in 17 Pat 451 is based. On behalf of the respondent Mr. Baidyanath Prasad referred to Keshava Prasad Singh V/s. Mathura Kuar, AIR (9) 1922 Pat 608. But the facts of that case must be distinguished. A suit had been brought by the landlord lor rent of a portion of a holding. The suit was dismissed by the lower Courts. On appeal tile High Court held that the suit was rightly dis