TABIRUDDIN MALLICK Vs. PROTIVA RANI DEVI

JUDGEMENT

(1.) The two appellants Tabiruddin Mallick and Bansi Malliek and their brother Pyzulla held the lands which are the subject matter of the present litigation in occupancy raiyati right; the holding was, however, put up to sale in execution of a rent decree and purchased by the proforma defendants Protiva Sundari Dasi, Umasashi Dassi and Puspalata Dassi. On an application under Section 37A-, Bengal Agricultural Debtors Act by Tabiruddin Bansi and Foyzulla, an award was made directing restoration of the lands to them. They applied to the Civil Court under Sub-section (8) of Section 37A in order to be put in possession on the strength of the award. As the landlord had in the meantime obtained a decree for rent against the heirs of a new tenant Phani Bhusan Bhattacharjee and Protivarani Debi had purchased the holding and had obtained possession through court, the former tenants Tabiruddin Mallick, Bansi Malllcte and Foyzulla impleaded Protivarani Debi as well as the heirs of Phani Bhusan Protivarani appeared and prayed that their names should be expunged from the proceedings as they were not partie to the proceeding which resulted in the award. The learned Munsif rejected this prayer, held that none of the opposite parties were under raiyats of the debt or and therefore all of them including Protivarani were liable to ejectment.

(2.) Thereupon Protivarani has instituted the present suit with a view to get rid of the award and the order of ejectment. Her case in substance is that as before the 20th day of December, 1939 which will be hereafter referred to as the 'relevant date', the landlords had alienated the lands by a bona fide lease for valuable consideration, as mentioned in Section 37A (1) (c) (iii) to Phani Bhusan Bhattacharjee, the award was without jurisdiction and so the order of the Civil Court directing possession to be delivered was itself void and is not binding against her. The defence was that as the order of the Civil Court under Sub-s. (8) was an appellate order, the only way in which the correctness of the order could be challenged was by way of appeal and as no appeal was filed, the order is binding on all the parties in the proceedings under Sub-section (8) of Section 37A, Bengal Agricultural .Debtors Act, including the present plaintiff. An objection was also taken that the suit was barred under Section 47, Civil P. C. There was also a denial of the averment that there was a bona fide lease in favour of Phani Bhusan Bhattacharjee before the relevant date.

(3.) The trial court held that there was a bona fide lease in favour of Phani Bhusan before the relevant date, and so the award was made without jurisdiction and he held also that Section 47 was not a bar to the present suit, nor was the suit barred by the principle of res judicata and passed a decree in favour of the plaintiff in the following terms: