DHANESWAR CHOUDHARY Vs. SUBODH KUMAR SETT

JUDGEMENT

(1.) This second appeal at the instance of the defendants is directed against the judgment and decree of reversal passed by a Subordinate Jude at Howrah in a suit for recovery of rent for the period Bhadra 1363 to Sravan 1366 B.S. The plaintiff's case was that they are the landlords to the extent of a one-third share in the property in suit and the defendants are the tenants under them and the pro forma defendants 2 to 10.

(2.) On behalf of the defendants, it was claimed that the plaintiffs have no interest in the property in view of the vesting of the same in the State of West Bengal under West Bengal Estates Acquisition Act. A further objection to the plaintiffs' claim that was urged before me was that the plaintiffs were not entitled to realise the rent in their one-third share as claimed in view of the fact that there was no contract with them to pay them one-third share of the rent, nor did the plaintiffs ever realise from the defendants rent in their alleged one-third share.

(3.) The rent is claimed at Rs. 7 per month and, according to the plaintiffs, they are entitled to Rs. 233.2/3 paise per month out of that from the defendants. The defendants challenged the plaintiffs' claim for separate realisation and the evidence in that regard, so far as the plaintiffs are concerned, comprised the oral testimony on behalf of the plaintiffs and a document, exhibit 2, which is an order passed by a subordinate Judge at Howrah in a suit for partition amongst the plaintiffs and their co-sharers. No counter-foils of rent receipts showing separate realisation of rents in the plaintiffs' one-third share could be produced in Court. Exhibit 2 the order, simply permitted the added defendants in the partition suit to realise rents and profits from the leased out properties in respect of their two-third share. Nothing on record indicates as to who were the added defendants in that partition suit, nor does it appear from the record if the property now in suit was included in the subject-matter of the partition suit. Exhibit 2 thus does not help the plaintiffs. The simple oral, evidence of the plaintiffs unaided by the counter-foils of rent receipts is difficult to accept, in view of the evidence on oath on behalf of the defendants to the effect that the plaintiffs never realised rent separately in their one-third share. It may be mentioned in this connection that the lower appellate court has not come to any finding in this regard.