DHIRENDRA NATH DE Vs. NARESH CHANDRA RAY

JUDGEMENT

(1.) THE appellant instituted the suit out of which this appeal has arisen for recovery of arrears of rent from the defendants and also for declaration of a charge on one-sixth share in the putni mahal in the terms of the contract creating a darpatni. This one-sixth share of the putni had since then come into the hands of defendant No. 5. A further prayer was made that if the decretal amount was not paid amicably within the time fixed, it might be realised by sale of the charged property and if even that was not sufficient to realise the amount, by sale of other properties belonging to the defendants.

(2.) THE suit was contested by defendant No. 5 alone. The main defence taken on his behalf was that the one-sixth share of the putni, which he had purchased from the original darpatnidar was not liable to be charged for the arrears of rent. It was contended on his behalf that section 168a of the Bengal Tenancy Act being a bar to the execution of a decree for arrears of rent due in respect of a tenure or holding by attachment and sale of any movable or immovable property other than the defaulting tenure, the contract made at the time of the creation of the darputni was not enforceable. This contention was accepted as correct by the learned Subordinate Judge who was further of opinion that as the decision as between the present plaintiff and the first four respondents in which the objection as to the enforceability of the charge as created by the contract was overruled, it did not operate as res judicata. In this view, he passed a decree for arrears of rent against defendants Nos. 1 to 4 with costs and dismissed the suit as against defendant No. 5.

(3.) ON appeal, the learned District Judge was also of opinion that the decision in the case of Naresh Chandra Ray v. Dhirendra Nath Dey, (1) [i. L. R. (1951) 1 Cal. 507], did not operate as res judicata and holding that the appellant could not make any other property liable for the arrears claimed excepting the darputni tenure in suit, he agreed with the learned Subordinate Judge that the plaintiff appellant could not get any declaration of a charge as prayed for. The present appeal is directed against this decision of the learned District Judge. The appeal was filed on the 25th November 1952. During the pendency of the appeal, both the putni and the darputni have, under the terms of the West Bengal Estates Acquisition Act, 1953, vested in the State of West Bengal and all that the erst-while owner of the putni is entitled to the compensation as will be awarded to him under the provisions of this Act. The State of West Bengal and the Collector of Howrah were added as parties to the appeal by an order of this Court passed on the 1st of June 1956, and the learned Government Pleader has appeared before us on behalf of the Collector of Howrah.