RUHINI KUMAR DAS Vs. AMIRUDDIN KAVIRAJ

JUDGEMENT

(1.) The facts upon which the decision of these appeals rests are that some persons living in the United Provinces named Sukuls obtained an ijara of a tenure from the Government in a khas mahal. The Sukuls formed three groups of persons governed by the Mitakshara School of Hindu law. The three groups were not living in commensality but each group formed a Mitakshara family. There was a non-transferable raiyati jote under them held by two tenants Balaram and Bhagaban (hereinafter called original tenants). On the death of the latter his four sons were joint tenants with Balaram. Although the tenancy was nontransferable, the tenants sold away a major portion of the tenancy to a number of persons including the defendants who were entered in the Record of Rights prepared subsequently as in possession of the several plots. There was only one plot No. 1212 which was shown in the possession of the original tenants. On 12 January 1920, the Sukuls brought a suit for arrears of rent against the original tenants in respect of the tenancy. The plaintiffs were registered as ijaradars under the Land Registration Act. They secured a decree on 25 February 1920. in execution of that decree they purchased the tenancy and were put in symbolical possession of it on 28 March 1922. Subsequently the defendants executed a kabuliyat in favour of one Kamta Prosad one of the Sukuls who it was said represented the entire body of the landlords, on 22nd Bhadra 1329 B. S., (September 1922). On 15 Magh 1329 B. S., (January or February 1923), the plaintiffs in this suit executed a kabuliyat in favour of the two groups of the landlords owning two-thirds interest in the tenure. This suit was brought by the plaintiffs to recover the two-thirds share in raiyati title in the lands in suit.

(2.) The learned Subordinate Judge in the trial Court found that the rent decree obtained by the Sukuls was a money decree and they purchased under it the right, title and interest of the judgment-debtors, which was then existing only in plot No. 1212. He accordingly decreed the suit for the two-thirds share of settlement plot No. 1212 and dismissed the rest of the plaintiffs claim. On appeal the learned Additional District Judge held that the rent suit brought by the Sukuls in 1920 was a rent suit under the Bengal Tenancy Act, and the tenancy passed to the landlords who had the right to settle it with the plaintiffs. The learned Additional District Judge further held that even if the landlords did not by their purchase in the rent decree, obtain a title to the tenancy, there was in the circumstances of this case an abandonment by the original tenants and they had the right to re-enter. It should be noted that both the Courts below have agreed in holding that the defendants lessor Kamta Pershad had no authority to give a lease on behalf of all the landlords. The case was accordingly fought on the footing of the defendants right as transferees from the original tenants.

(3.) The defendants have appealed to this Court. It is argued on their behalf that the view taken by the learned Additional District Judge on both the points is wrong in law.