NRIPENDRA KUMAR DUTTA, RECEIVER TO THE ESTATE OF LATE GOBINDA LAL DAS CHOWDHURI Vs. NIKUNJA BEHARI DAS CHOWDHURI

JUDGEMENT

(1.) This is an appeal by one of the defendants in a scat for recovery of arrears of rent for the years 1321 to 1324 B.S. The defendant who appeals is a Receiver appointed by the Court of the Subordinate Judge of Sylhet, He is the Receiver to the estate of the late Gobinda Lal Das Gupta and others, who are so-sharer proprietors with the plaintiff. The other defendants are raiyats in occupation of the land for the rent of which the suit was brought. The Munsif dismissed the suit as against the raiyats but has decreed it against the Receiver. This judgment was confirmed on appeal to the Subordinate Judge of Sylhet. The Receiver now appeals, and on his behalf the first point taken is that, the suit could not proceed against him by reason of the permission of, the Court not having been properly taken. If appears that the suit was instituted on the 18th April 1918. On the 13th September 1918 an application was made to the Subordinate Judge for permission to sue the Receiver, and permission to conduct the suit against him was given on the 26th November following. It is argued, in the first place, that granting of permission by the Court appointing the Receiver is a condition precedent to the Institution of the suit and that since this permission had not been accorded before the suit was filed by the plaintiff, it was without effect. In support of that proposition reference it made to the case of Pramatha Nath Gangooly v. Khetra Nath Banerjee 32 C. 270 : 9 C.W.N. 247. That was a decision by a learned Judge sitting on the Original Side of this Court. It has been dissented from by another learned Judge in the case of Rustomjee Dhunjibhai v. Frederic Gaebele 51 Ind. Cas. 486 : 23 C.W.N. 496 : 46 C. 352 and is contrary to the view taken by a Division Bench of this Court in the case of the Maharaja of Burdwan v. Apurba Krithna Roy 10 Ind. Cas. 527 : 15 C.W.N. 872 : 14 C.L.J. 50. I think, therefore, that there is no force in this contention and that the permission granted bj the Subordinate Judge on the 26th November may be held to relate bask to the time when the suit was instituted, It is further suggested that the permission merely "to conduct the suit" is not equivalent to a permission to institute a suit. It seems to me that this is a mere matter of words and that there is no substance in it.

(2.) The final contention is that the appellant has been in exclusive possession of a portion of the Zemindary in which this land lies ever since the year 1803 B.S. that he has been realising the rent of the holding from the other defendants and that under the circumstances the plaintiff is not entiled to get rent from them. The contention put forward on behalf of the defendants in the Court of the Subordinate Judge was that the land was khamar. It is suggested that the term was rather loosely used and that what was meant was not strictly sneaking Zemindar s khamar. I have no doubt that the learned Subordinate Judge fully apprehended what the nature of the case was and he finds that the land was not khamar. That, I think, concludes the matter.

(3.) The appeal, therefore, fails and is dismissed with costs.