BHUBAN MOHAN KOLEY Vs. NARENDRA NATH KONWAR

JUDGEMENT

(1.) These two appeals arise out of a suit for rent. The plaintiffs are two of the four shebaits of an idol Damodar Jieu. Their case is that there were four shebaits of the idol, the plaintiffs and defendants 4 and 5. By an arrangement amongst themselves the plaintiffs were entitled to four annas, defendant 4 to four annas and defendant 5 to eight annas of the rent from the tenants holding the lands belonging to the idol. Defendants 4 and 5 having ceased to perform the sheba of the deity the plaintiffs allege that they are entitled to recover 16 annas rent on behalf of the idcl. Defendants 4 and 5 are co-shebaits and they filed a joint written statement contending that they had not lost their right of coshebaitship and the plaintiffs are not entitled to realize more than four annas of the rent and that by a family arrangement defendant 4 used to realize four annas and defendant 5 the remaining eight annas of the rent and that the tenant-defendants had, in collusion with the plaintiffs, withheld paying the rent to defendants 4 and 5. The tenant-defendants alleged in their written statement that defendants 4 and 5 had lost their right of shebaitship on account of their conduct and that they paid the rent for 1328 to the plaintiffs and defendants 4 and 5 and the entire rent for 1329 to 1331 to the plaintiffs. Both the Courts below have found that defendants 4 and 5 by their conduct and certain circumstances have ceased to be shebaits of the idol and the plaintiffs are entitled to recover 16 annas of the rent from the tenant-defendants. As regards the payment by the tenant- defendants both the Courts below disbelieved the plea of payment of defendants 4 a/ad 5 alleged in an application filed during the pendency of the suit as well as the payment of rent previous to the suit by the tenant-defendants to the plaintiffs and defendants 4 and 5.

(2.) There are two appeals before us arising from the same suit, one by defendant 4 who claims four annas share as shebait and the other by the tenant-defendants.

(3.) Appeal No, 1092 of 1929 preferred by the shebait defendant 4 was first argued and Dr. Mukherjee took several exceptions to the findings of the Court below. In the first place he argued that the plaintiffs were not entitled to maintain the suit for the entire rent, they having been entitled only to a portion of it. We do not see why the plaintiffs cannot maintain the suit for the 16 annas of the rent if they succeed in making their case as against defendants 4 and 5. Their case is that defendants 4 and 5 have by their conduct and by ceasing to perform the sheba of the idol, no longer occupied the position of shebaits and that the entire rent is due to the plaintiffs who alone carry on the puja of the idol.