MAHAMMAD ZEAULLA MIAH Vs. SUKLIANNESSA BIBI

JUDGEMENT

(1.) This is an appeal in a suit brought by the plaintiffs-appellants, who may be described as darpatindars, to recover arrears of rent for the years 1309 to 1312 from the defendants who possess a sepatni interest in the mahal.

(2.) The facts of this litigation are hardly in dispute. The predecessors of the plaintiffs obtained a darpatni lease in the year 1295, the rent reserved being Rs. 1,333-8-9. The darpatni interest was sold and purchased by the plaintiffs in execution of a rent decree obtained by Jawaherkumari Debi, as patnidar and the sale certificate empowered the auction purchaser to annul all sorts of encumbrances. On the basis of this sale certificate, and also, it appears, having regard to the durpatni patta of the 24 Bysak 1295, wherein the lessee was forbidden to carve out any seputni interest, the plaintiffs sought to cancel the seputni lease set up by the defendants; and in accordance with that intention, they served a notice upon them. The defendants, however, declined to yield up possession to the auction purchasers, and a succession of cases, both Civil and Criminal, was the natural result. On the 3 October 1902, corresponding with 17 Ashin 1309, the Magistrate attached the subject of dispute under Section 146 of the Criminal Procedure Code. For the management of the attached property, and the collection or rents from the tenants, two ijara leases were successively granted by the Magistrate to Mahatab Khan and Safaetullya Chowdhury for the years 1311 and 1312, respectively. In the first ijara lease, Mahatab Khan covenanted to pay the head rent Rs. 1,333-8-9 to the patnidars and a sum of Rs. 1.610 by way of the ijara rent. Similarly, Safaetullya agreed to pay the same rent to the patnidar, plus a sum of Rs. 1,266-7-3, which was to be deposited in the collectorate to await the order of the Magistrate. It is important to notice, in both these ijara leases, that the subject of attachment was the seputni interest tinder the darpatnidars, and the further description is of mouza Khas taluk known as Lot Kims taluk appertaining to a certain mahal.

(3.) It is perfectly clear, therefore, that the attachment was operating so as to exclude the present defendants from making khas collections of rent. That this was the intention of the authorities is also clear from the further fact that the defendants were permitted to withdraw the net amounts Rs. 1,610 and Rs. 1,26,6-7-3 paid in by the ijaradars and lying in deposit in the Colleeterate. These sums aggregate Rs. 2.876-7-3. There was a suit between the present parties: the defendants sued the plaintiffs for contribution in respect of sums paid by them for saving the darputni interest of the plaintiffs from the hammer. That danger so averted was in respect of the arrears of rent which accrued due up to a period not later than April 1902, and a decree was obtained by the present defendants on the 25 June 1906. They also succeeded, a few months later, (4 September 1906), in obtaining an ex parte decree, in Suit No. 67 of 1905 against the present plaintiffs, establishing their sepatni title. It appears that the money withdrawn by them, as already mentioned, was withdrawn in pursuance of this final adjudication of their title.