SURENDRA NATH GHOSE Vs. HARIPADA MAITY AND ORS.

JUDGEMENT

(1.) These two appeals are by the defendants in two Money Suits. The suits were sequels to certain pre-emption proceedings. The relevant facts (which are not in dispute before us) be within a short compass and they are as follows:

(2.) There was an occupancy raiyati holding of which the plaintiff-respondent was one of the co-sharer tenants. One of the plaintiff's co-sharers transferred his interest in the said holding to the defendant Nil Madhab Ghose of Money Suit No. 42 of 1946, on thp 26th of April, 1944. The defendant in the other Money Suit No. 43 of 1946, Surendra Nath Ghose, had earlier obtained a transfer of the interest of another of the plaintiff's co-sharers in the same occupancy holding on 6th April, 1944. On 4th Jan., 1945, the plaintiff applied for pre-emption and he made two applications in respect of the above two transfers. These applications were allowed by the trial Court on 25th Aug., 1945, and 3rd Oct., 1945 There were appeals taken against the trial Court's decisions and the appeal in one case was finally disposed of on 22nd Feb., f946, and, in the other, on the 26th of March, 1946, after the plaintiff had made certain further deposits to the credit of the transferees. On 25th June, 1946, the present suits (Money Suit No. 42 of 1946 and Money Suit No. 43 of 1946) were instituted by the plaintiff respondent for recovery inter alia of what may be conveniently called rent for use and occupation [vide sections 26F(8) and 156(d) of the Bengal Tenancy Act] for the year 1352 B.S. The suits were decreed in part by the learned Munsif who allowed the plaintiff a decree for Rs. 197 in each case as rent for use and occupation of the land in 1352 B.S. by the defendants concerned. On appeal, that decision has been affirmed by the learned Additional District Judge and the defendants' appeals have been dismissed The defendants have now come up in Second Appeal to this Court.

(3.) The short question that arises for consideration is as to for what period the plaintiff would be entitled to rent for use and occupation from the defendants. The relevant statutory provisions are section 26F, sub-sections (7) and (8), and section 156, clause (d) of the Bengal Tenancy Act Under sub-section (7) of section 26F, the right, title and interest in the transferred portion or share of the holding, accruing to the transferee from the transfer, vests in the pre-emptor from the date of the making of the pre-emption order. Under sub-section 8, the transferee, when he is divested of his right, title and interest under the provisions of sub-section (7), is to be deemed, for purposes of clauses (a), (c) and (d) of section 156. to be a raiyat. ejected from his holding by proceedings for his ejectment, commencing on the date on which the application for pre-emption was made. The defendants appellants contend that, under sub section (8), read in the light of sub-section (7) of section 26F and section 156, clause (d) of the Bengal Tenancy Act, they are liable to pay rent for use and occupation to the plaintiff-respondent only for the period commencing from the date of the making of the pre-emption order and ending with the delivery of possession. According to the plaintiff-respondent, this liability of the defendants would start from the date of making of the pre-emption applications and continue till delivery of possession and thus cover the entire Bengali year 1352 B.S. (for which the plaintiff's claims were made) and a part of 1353 B. S. too The Courts below have accepted the respondents' view.