BALAI CHANDRA PAL Vs. RAISUDDIN NASKAR

JUDGEMENT

(1.) This second appeal arises out of a suit for rent and the dispute relates to the shares of the plaintiffs and co-plaintiffs. The latter have not appeared in this Court and the tenants-defendants who were represented at the hearing of this appeal by Mr. Bakshi have not really contested the appeal, although they are certainly interested in its result.

(2.) Under the plaintiffs appellants and their co-sharers, four of whom are respondents 3-6 in this Court, and were the co-plaintiffs in the trial Court there was an occupancy raiyati holding held by one Dayal Krishna Naskar. That holding was sold in a rent sale in R. Ex. Case No. 879/41 and some of the landlords, namely, the plaintiffs appellants and the co-piaintiffs-respondents 3-6 became the auction purchasers. The sale price was Rs. 393/1/- out of which Rs. 234/-and odd annas were paid by the plaintiffs and Rs. 158/- and odd annas were paid by the co-plain tiffs. This roughly works out to the proportion of 9 1/2 as. and 6 1/2 as., as calculated by the two Courts below. In the superior interest, however, the shares of the parties were 4 as. and 2 as. which would give us the proportion 10 as. 13 1/2 gds. and 5 as. -- 6 1/2 gds., as claimed by the plaintiffs. The question is whether the claims of the above two sets of co-sharers landlords viz. the plaintiffs and the co-plaintiffs, in regard to the defendants' under raiyati of Rs. 32/1/- p. a., originally held under the raiyat Dayal, would be in the former proportion 9 1/2 as : 6 1/2 as. or in the latter proportion 10 as. 13 1/2 gds. : 5 as. 6 1/2 gds. The Courts below have accepted the first set of figures viz. 9 1/2 as. and 6 1/2 as. and have rejected the plaintiff's claim of a higher share, namely, in the proportion of 10 as. -- 13 1/2 gds. and 5 as. -- 6 1/2 gds. The propriety of this decision is challenged in this appeal By the plaintiffs appellants.

(3.) The Courts below have relied on Section 45, Transfer of Property Act but the appellants con-tend that that section has no application to involuntary sales or transfers by operation of law. They further in their turn rely on Section 22 (2), Bengal Tenancy Act.