CHANDRANATH MUKHERJEE Vs. TUSHARIKA DEBI

JUDGEMENT

(1.) The main controversy in this appeal on a certificate granted by the High Court of Calcutta, against the concurrent decisions of the Courts below, centres round the true interpretation and effect of Ss. 15 and 16 of the Bengal Tenancy Act - Act VIII of 1885 - (hereinafter referred to as the Act). The Courts below have substantially decreed the plaintiff's suit for arrears of rent in respect of a se-patni tenure. Hence, the appeal by the defendant.

(2.) The plaintiff's ancestor, Nirmal Chandra Benerjee, was a durpatnidar under the patnidar in respect of the tenure in question. He died leaving him surviving, his three sons - Satya Ranjan, Satya Jiban and Satya Kiron - who became the durpatnidars in respect of the tenure by succession, and there is no dispute that they were so mutated in the superior landlord's office. There was a partition suit between them in the Court of the Subordinate Judge at Alipur being Title Suit No. 128 of 1946. During the pendency of that suit, Promode Kumar Benerjee was appointed Receiver of the properties under partition. Satya Jiban died during the pendency of the partition suit. The exact date of his death does not appear in the record. His heirs are : his widow Tusharika Debi and his two sons, Uptal Kumar Benerjee who is of unsound mind, and Ujjal Kumar Benerjee, a minor. The Receiver aforesaid, instituted the suit out of which this appeal arises, for arrears of rent, against the first defendant, now appellant, in respect of the years 1352 to 1355 B. S. He put the total claim inclusive of interest, at Rs. 40,000 and odd, which was subsequently reduced to Rs. 27,000 and odd. It is not necessary to go into the details of the claim, because the amount decreed is no more in controversy. To the suit for rent, being Rent Suit No. 3 of 1949, in the Court of Second Subordinate Judge, Hooghly, the heirs aforesaid of Satya Jiban were impleaded as pro forma defendants Nos. 2, 2 (a) and 2 (b), and so were Satya Kiran and Satya Ranjan as defendants 3 and 4, respectively. During the pendency of the rent suit, the partition suit was compromised, with the result that the durpatni tenure in question was allotted to Satya Jiban's branch of the family. Hence, the plaint was amended by an order of the Court, dated 25th July 1949, by substituting the aforesaid heirs of Satya Jiban as the plaintiffs in the place of the Receiver aforesaid, who was the original plaintiff and who was discharged from the record.

(3.) The suit was contested on a number of grounds, but it is now necessary only to refer to the plea in bar of the suit, namely, that the plaintiffs substituted as aforesaid and by transposition from the category of pro forma defendants to that of plaintiffs, were not entitled to sue for rent on the ground that they had not got themselves mutated in the place of their predecessors-in-title in the landlord's records and that, therefore, this suit was barred under S. 16 of the Act. It is no more necessary to set out the facts bearing on the devolution of title to the property in question, because that was not a controversy raised in the High Court, and the arguments in this Court were, therefore, confined to the technical plea aforesaid. After hearing the parties, the learned trial Judge decreed the suit for Rs. 25,000 and odd. The first defendant preferred an appeal to the Calcutta High Court, and a Divisional Bench of the Court, after hearing the parties, directed a limited remand to the trial Court, for taking additional evidence in proof of certain documents filed by the plaintiffs but not properly proved at the original trial. The trial Court was also directed to submit its findings on the question of the right of the plaintiffs to maintain the suit in view of the provisions of Ss. 15 and 16 of the Act. After remand, the documents on proof were again marked as Exs. 1 and, 2 and the finding was returned by the trial Court in due course. After the receipt of the finding, the High Court heard the appeal once again and dismissed it with costs. The appellant moved the High Court and obtained the necessary certificate. Hence this appeal.