RAM LAL DUTT SARKAR Vs. DHIRENDRA NATH ROY

JUDGEMENT

(1.) THIS appeal is brought by special leave from a decree dated March 29, 1938, passed by the High Court at Calcutta on second appeal. The respondents have not appeared before the Board and Mr. Wallach for the appellant has carefully discharged his duty to see that all relevant matters are placed before their Lordships. The decree under appeal reversed the decrees of the Additional District Judge and Subordinate Judge at Faridpur, dated respectively April 17, 1935, and February 6, 1933.

(2.) THE suit was begun on April 15, 1931. It was a suit for three years' rent of a permanent tenure which had been granted by the predecessors of the plaintiffs and of certain pro forma defendants to one Srinath Sarkar by a patta dated July 8, 1875, and for which a kabuliyat had been executed by Srinath on May 22, 1877. He was engaged on zemindari management in the service of the plaintiffs' predecessors who granted him the patta. He died childless in 1890 and his widow Patambari Dassee succeeded him as tenure-holder. She died on March 3, 1930, whereupon the appellant and his two brothers succeeded as her husband's reversioners. THEy were not originally made parties to the suit but were added on their own application. THE appellant has since acquired his brothers interests. His defence to the suit is that part of the lands comprised in the) patta of 1875 were demised at a lump sum rent, and that, as the plaintiffs or their predecessors some time in the eighties of last century dispossessed Srinath of portion of these lands measuring some 37 acres and worth about Rs. 56 per annum, no part of that rent is payable by him his right being to a suspension of the entire rent until the lands in question are restored to him. THE trial Court and the lower appellate Court sustained his defence and dismissed the claim for rent. THE High Court on second appeal remanded the case for calculation of the proper abatement of rent to be allowed to the appellant. His main grievance is that the learned Judges of the High Court have contrary to Sections 100 and 101 of the Civil Procedure Code set aside the lower appellate Court's finding of fact that the plaintiffs' predecessors gave possession of the 37 acres to Srinath and thereafter dispossessed him.

(3.) BUT it has, been held by the trial Court and by the lower appellate Court that mourn Orakandi included these two Bils and) that the 37 acres now in question were part of the raiyati area of 1875 (1282 B.S.')-part that is of the 822 bighas which bore the lump sum rent of Rs. 957-14-8. This must now be actepted.