BANSI GOPAL JIU Vs. UDAY CHAND MAHATAB

JUDGEMENT

(1.) In this appeal under Clause 15 of the Letters Patent, two interesting points were canvassed before us, of which one was not considered by Mr. Justice Mookerjee, against whose decision the appeal is directed.

(2.) The appeal is on behalf of the plaintiffs. They and defendants Nos. 3 to 17 held a raiyati tenancy under the Maharaja of Burdwan, comprising fiftysix bighas of land and carrying an annual rent of Rs. 48-13-0. The rent of the tenancy for the Bengali years 1338 to 1341 having fallen into arrear, the Court of Wards, who were managing the Maharaja's estate at the time, started a certificate proceeding which was Certificate Case No. 857 of 1934-35 and ultimately brought the properties to sale on March 11, 1935. At the sale, the lands were purchased by the Court of Wards themselves for only three pies. The sale was confirmed on May 11, 1935, and delivery of possession was taken on July 20, 1937, but it was only symbolical possession.

(3.) In June, 1941, the Maharaja settled the lands with one Surendra Nath Bhattacharjee, who is defendant No. 2 in this suit. The Maharaja was, however, unable to give possession to the lessee and therefore on June 9, 1942, he instituted Title Suit No. 135 of 1942 against the old tenants for recovery of possession, either directly or through his new lessee as his tenant. The present plain tiffs were defendants Nos. 4, 5 and 6 in that suit and the present defendant No. 2, who is the new lessee, was pro forma defendant No. 15. The present plaintiffs did not contest the suit, b(sic) some of their co-sharers did and the defence s(sic) up by them was, first, that the sale was bad, (sic) the relevant notices had been suppressed; second(sic) that, in any event, it had not passed the enti(sic) holding, inasmuch as some of the co-sharer-tenan(sic) had not been made parties; thirdly, that the plaintiff tiff had never obtained delivery of possessor and, fourthly, that the predecessor-in-interest (sic) the present Maharaja had resettled the lands wit(sic) the old tenants or ratified the old tenancy (sic) cancelling the certificate sale. These defences were overruled by the trial COURT in the view that really the sale could no long(sic) be challenged in that suit, but the Court also held that the notices had been duly served, that the Maharaja had obtained delivery of possession, that thereafter the old tenants had continued to be ir(sic) actual possession, but only as holding under th(sic) 'kut' system, which meant holding as 'bhagchashis(sic) without any right of tenancy and that, therefore, the Maharaja was entitled to recover possession(sic) The actual decree made, however, was that the Maharaja would get possession only of a 5/6ths(sic) share of the tenancy through the new lessee, in(sic) asmuch as the tenants, holding the remaining interest, had not been represented in the certificate proceedings and that he would get possession of the remaining 1/6th through the old tenants holding that share, namely, defendants Nos. 12 and 13 of that suit who, by the way, are defendants Nos. 15 and 16 of the present suit. The decree of the trial Court was made on May 29, 1943.