KALIPADA JOTEDAR Vs. BIMAL KUMAR

JUDGEMENT

(1.) The principal question in this appeal is whether the tenancy for which a kabuliat was executed in 13-7-1920, remained after the amendment of Section 191, Bengal Tenancy Act in 1928 a raiyati at a fixed rent or fixed rate of rent. The kabuliat was executed by Nara Mandal, predecessor-in-interest of the present appellant, in favour of the predecessor-in-interest of the plaintiffs. There was a clause therein that if there was a sale of the land comprised in the kabuliat or any part thereof, the lessor would be entitled to a quarter of the consideration money and if that money was not paid by the purchaser, the lessor would be entitled to refuse to recognise the purchaser as a tenant and also to take khas possession of the land without notice. Nara Mandal sold the disputed land to defendant 8 on 13-9-1941 for a sum of Rs. 1500/-. It appears that thereafter the plaintiffs' father instituted a suit for his share of the chouth and the suit was decreed on contest. On 14-12-1943 defendant 8 sold the disputed plots to defendants 1 to 6 for Rs. 6000/-. Shortly thereafter on 24-6-1944, these defendants 1 to 6 in their turn sold these lands to defendant 7 for Rs. 6500. The plaintiffs claim Rs. 1300 as one-fourth of the consideration money for these two transactions with interest at 10 per cent. per annum.

(2.) The defence was that the status of the tenant was that of an occupancy raiyat and not a raiyat at fixed rent and the necessary consequence of that was that the term as regards payment of chouth was not enforceable in view of the provisions of Section 178(1)(g), Bengal Tenancy Act. It was further contended that in any case defendants 1 to 6 would be liable for the chouth with respect to the sale in December 1943, and defendant 7 would be liable for the chouth only as regards the sale of June 1944.

(3.) The trial Court rejected the defence contention and held that the term as regards chouth was enforceable. He decreed the suit on contest against defendant 7 and ex parte against the other defendants for a sum of Rs. 1171/14 but ordered that the plaintiffs would recover this sum as chouth from defendant 7 and get corresponding costs from him. There was no order as regards recovery of any sum from defendants 1 to 6.