JUDGMENT
1. The plaintiff in the suit out of which this second appeal arises sought to recover arrears of rent for. the years 1324 to 1326 in respect of 31 bighas 1 katha, 2 dhurs of land at a jama of Rs. 77-14-9 inclusive of cesses. The defendants in their written statement urged that the area of 31 bighas odd had been split up into separate holdings of which the various defendants were in occupation at certain rates of rent. The defendants further pleaded that they had each of them paid the rent due by them to the landlord.
2. It happened that in the year 1327 the plaintiff gave a thica lease of this holding to one Mr. Fox and it was during his thica that the area was split up into separate holdings. The plaintiff’s claim was that he was not bound by the action of the thicadar in splitting up the holdings and was entitled to recover a lump sum of rent from all the defendants jointly in respect of the whole 31 bighas.
3. Both the lower Courts have rejected the plaintiff’s claim holding that he was bound by the action of the thicadar and that a joint suit against all defendants could not be maintained.
4. Mr. Nirsu Narain Singh puts forward the claim that Section 88 of the Bengal Tenancy Act applies, and frees the plaintiff from the obligation to stand by the splitting, up brought about by the thicadar. Mr. Nirsu Narain Singh, in fact, contends that the thicadar was an agent within the meaning of s 88. It cannot, I think, be held that a thicadar is the agent of the landlord. He holds under a lease and he collects the money for himself and not for the landlord. Section 105 of the Transfer of Property Act defines a lease of an immovable property as a transfer of a right to enjoy such property, made for a certain time. As the leaseholder, the thrcadar,can hardly be described as an agent. Furthermore under Clause (4) of s 3 of the Bengal Tenancy Act the thicadar is a landlord.
5. But in this case we are bound by the decision of this Court in the case of Mahamad Nazirul Husmin v. Chuni Kamti 28 Ind. Cas. 706 : 2 P.L.J. 151 : 1 P.L.W. 229. where it was held that consent by a thicadar given in good faith for the benefit of the estate to an alteration of the area of the holding under him and the apportionment of rent upon the new holdings is binding upon the landlord. In the present case the learned District Judge has found that there is no sign of any collusion between the raiyats and the thicadar or of any bad faith on the part of the thicadar.
6. It is then contended by Mr. Nirsu Narain Singh that a money-decree should be granted against the defendants and he refers us to the written statements where the defendants admit that they hold the split up holdings separately at certain rates of. rent. He has not noticed, however, that the same statements put forward a plea of payment and under the circumstances no decree of the character he desires would be passed in the present case.
