UDAICHAND MAHATAB Vs. BHUJANGA BHUSAN BANERJEE

JUDGEMENT

(1.) This appeal is by the Plaintiff and it arises out of a suit for rent. The Plaintiff is the landlord and the Defendants are the tenants. On account of arrears of rent of the years 1340 B.S. to 1343 B.S. and a part of 1344 B.S. there was an award by the Special Debt Settlement Board, Suri. The amount of the award was Rs. 629-4 annas and that was payable in four instalments, namely, the first instalment of Its. 150 by the end of Falgoon, 1349 B.S., the second instalment of Rs. 150 by the end of Falgoon, 1350 B.S., the third instalment of Rs. 150 by the end of Falgoon, 1351 B.S., and the fourth instalment of Rs. 179-4 annas by the end of Falgoon, 1352 B.S. This award is dated August 4, 1942. As there was default in the payment of the first instalment the landlord applied in Certificate Case No. 787 D.S.B. of 1943-44 of the court of the Certificate Officer of Birbhum for realisation of the same. In execution of the certificate made in that case the defaulting patni tenure was put up to sale and was purchased by the landlord. The Sale-proceeds after meeting the costs of sale, were, it appears, just sufficient for the satisfaction of the dues under the said certificate, namely, the first instalment payable under the award mentioned above. The sale was held on June 27, 1945, and it was confirmed on August 28, 1945. In the meantime, on April 17, 1945, the landlord had instituted the present suit for recovery of arrears of rent, etc., for the subsequent year 1348 B.S. amounting to Rs. 21-9-1 p. after deduction of payments made, and in that suit he had included also the outstanding balance payable under the award, namely, Rs. 471-8 annas (this being the net balance after deduction of the sum of Rs. 7-12-0 p., directed by the award to be remitted from the fourth installment, the total claim in the suit being laid at Rs. 493-1-1.

(2.) The material defence, inter alia, was that, so far as the amount of Rs. 471-8 annas, payable, under the award of the Debt Settlement Board, was concerned, that amount could not be included in this suit and the recovery of that amount was barred under Sections 28 and 29 of the Bengal Agricultural Debtors Act. There was also a defence that the suit was barred by reason of Section 168A of the Bengal Tenancy Act. This latter defence which was taken in the written statement seems not to have been pressed, probably because it was not a defence available at the stage of suit.

(3.) The learned munsif gave effect to the defence based on Sections 28 and 29 of the Bengal Agricultural Debtors Act and decreed the Plaintiff's suit only to the extent of the rent, etc., of 1348 B.S. giving him a decree of Rs. 21-9-1 pie only. On appeal by the landlord, the decree of the learned munsif was confirmed, the learned District Judge also holding that Sections 28 and 29 of the Bengal Agricultural Debtors Act precluded the landlord from including in the suit the amount, outstanding under the award of the Debt Settlement, Board, and barred its recovery. Against this decision of the learned District Judge the present appeal has been filed by the Plaintiff landlord.