MUSST UMASUNDARI DASI Vs. BIRBUL MANDAL AND OTHERS

JUDGEMENT

(1.) It appears to me that neither of the two Courts, before whom this case has been tried, has given a decision in which we can quite concur. That of the Assistant Collector, who tried the case originally, is manifestly and seriously wrong. The suit was brought by Birbal Mandal, who described himself as a dar-mokurraridar of the Mauza Khyrabad Chiranjora against Ananto Sen and others, who are ryots of that mauza, for some portion of the rent of the year 1273, and the full rent of 1274. The defendants admitted that rent was due to the plaintiff for the year 1273, but they alleged that they were not liable to pay anything to the plaintiff for the year 1274, because the rights of the superior holder, the mokurraridar, having been sold under Act VIII of 1865, Bengal Council, in execution of a decree against that person, the rights of the plaintiff as dar-mokurraridar had been extinguished by operation of section 16 of the Act just quoted, and they further allege that they had paid the rents for 1274 to Umasundari Dasi, who accordingly intervened in this suit under section 77, Act X of 1859, and was made a party. After examining the plaintiff and the agent or gomasta of the intervenor, the Assistant Collector laid down the issue in these words "the only issue between the intervenor and the plaintiff is whether the plaintiff's mokurrari was annulled or not under section 16, Act VIII of 1865, B.C. It is for him to show that ha is included in the exception, or that the grantor of his mokurrari had the power under his title to create such an incumbrance:" and the view which the Assistant Collector took of the case, is still further shown by a passage in his judgment in which I find these words "the issue fixed in the case was whether the plaintiff's lease was annulled or not under section 16, Act VIII of 1865, by the transfer of the leasor's rights, and the plaintiff was directed to prove that he came within the exception named in the section, or that the lessor had the power to grant such leases. He has proved neither." Now the only evidence adduced by the parties under the issue framed, was the allegation of the plaintiff himself, who on solemn affirmation filed his own patta. In this state of things the Assistant Collector ordered that the case be decreed for 9 rupees, being the rent of 1273, and that the plaintiff was to pay all the costs. Why the plaintiff should have to pay the whole of the costs in these circumstances, does not appear; but that is of minor importance.

(2.) This case going before the Zilla Judge on appeal, he observed rightly enough, that as between the plaintiff and the intervenor in this case the sole issue which the Assistant Collector had to try, was the question of the actual receipt and enjoyment of the rent by such third person, and as between these parties the suit ought to have been decided according to the result of that enquiry. The Judge then found that the intervenor had given no proof whatever of such receipt by her. He therefore reversed the decision of the Assistant Collector, and went on to give a decree for the plaintiff in full.

(3.) The party whom we might have expected to come before us in appeal from this judgment, is perhaps the defendants, because while the intervenor at all events had a remedy by civil suit, left to establish her right, and moreover alleges that she has already got the rent for 1274, it is rather difficult to see how she is injuriously affected by the decision, whereas the defendants find themselves in the position of persons having to pay over again to the plaintiff the rent which they say they have already paid to the intervenor. But the defendants neither appeared before the Zilla Judge nor before us. We have therefore to consider what, in the present state of things, is the order that we ought to make.