BAIDYANATH RAI Vs. SM JAY KUMARI

JUDGEMENT

(1.) These Second Appeals, nine in number, by defendants second-party arise out of nine rent suits brought by the plaintiffs, who are respondents first-party, against the tenants, who are defendants first-party and respondents second-party in these appeals, for recovery of arrears of rent and cess for four years from 1350 to 1353 M, S. These nine appeals have been consolidated, and this judgment will govern them all.

(2.) The facts culminating in this litigation may be shortly stated as follows. The plaintiffs, namely, Shrimati Jay Kumari, Shrimati Nirmal Kumari and Shrimati Bijoy Kumari are sixteen annas proprietresses of the Mahal bearing tauzi No. 8 of the Purnea Collectorate which comprises, several villages. Under this tauzi one Syed Asad Reza was the patnidar, and under him there was an under-tenure-holder, namely, Musammat Koto Dai, the holder of the Andha-sur estate, and the villages in which the rent-claimed holdings are situate are comprised in these under-tenures which have been recorded in the Survey record-of-rights under different khewats in different villages. The defendants first-party of these rent suits, who are the tenants, are thus raiyats under the under-tenure-holder, Musammat Koto Dai. Between 1921 and 1932 Syed Asad Reza purchased the interests of the under-tenure-holder in different villages in execution of decrees for arrears of rent against the under-tenure-holder. The consequence of this purchase was that the under-tenure interests merged in the patni tenure, and thereafter the tenants, namely, defendants first-party, held their respective holdings immediately under the patnidar, who became their landlord. Syed Asad Reza started realising rent direct from the tenants. In 1935 the plaintiffs' estate bearing tauzi No. 8 was attached by the Collector for arrears of cesses under the provisions of Section 99 of the Cess Act and Deputy Collector, styled as Cess Deputy Collector filed a certificate, being this estate. In 1937 the District Judge of Purnea appointed Syed Abdul Majid, Pleader, as the common manager of the patni estate of Syed Asad Reza and others under the provisions of Section 95 of the Bihar Tenancy Act. The rent of the patnidar had fallen in arrears, and the Cess Deputy Collector filed a certificate, being Certificate Case No. 284 of 1941-42, for recovery of the arrears. On the 11th January, 1941, a notice under Section 7 of the Public Demands Recovery Act was served on the common manager. On the 1st March, 1943, the patni interest of Syed Asad Reza was purchased by the Col- lector in execution of the certificate filed in the aforesaid case, No. 284 of 1941-42. The Cess Deputy Collector obtained delivery of possession on the 1st November, 1943. It appears, however, that the entire arrears of cesses were discharged by set-off against the rent realised by , the Cess Deputy Collector in cash, with the result that the acquisition of the patni interest by the Cess Deputy Collector in execution of the certificate was in excess of the arrears that had to be recovered under Section 99 of the Cess Act, and, therefore, when on the total elimination of the arrears the Government released the estate of the plaintiffs from, attachment on the 27th November, 1943, the Collector surrendered also the patni interest to the proprietresses, namely, the plaintiffs. The result was that the under-tenures vested in the patni, and later on the patni interest also vested entirely in the superior landlords, namely, the plaintiffs, and the latter thus became the immediate landlords of the tenants, defendants first-party. Apart from this, the plaintiffs also took step for the annulment of the under-tenures held by the defendants second-party, namely, Baidyanath Rai and Deonath Rai (hereinafter referred to as the Rai brothers). On the 23rd February, 1944, they filed an application under Section 167 of the Bihar Tenancy Act for the annulment of the encumbrance, and the notices were duly served on the 2nd August, 1945, the effect of which was that the under-tenures were annulled.

(3.) The defendants second-party, namely, the Rai brothers, came on the scene for the first time in 1925 when they obtained from Musammat Koto Dai, the under-tenure-holder, a simple mortgage of the different khewats in different villages which constituted her under-tenures. The Rai brothers instituted a suit to enforce their mortgage and obtained a mortgaged decree. They levied execution in 1932 by sale of the mortgaged property in Execution Case No. 208 of 1932 and in due course themselves purchased the entire under-tenure interests of Musammat Koto Dai. On the 12th March, 1934, they obtained delivery of possession. By virtue of this purchase they became the under-tenure-holders of the different khewats under which the rent-claimed holdings lay. It will be seen that before their purchase the under-tenure interest had already been acquired by the patnidar. By the purchase, therefore, they got practically nothing. The Rai brothers approached the common manager, and, with the constent of the District Judge, obtained from him a release of under-tenures on the 10th June, 1942 on payment of Rs. 1700/- towards the satisfaction of the arrears of rent in respect of the said under-tenures. By virtue of this release they claimed to be the under-tenure-holders entitled in law to recover rent from the tenants.