RANI HARSHAMUKHI DASI Vs. NABA KRISHNA RAY CHOUDHURY

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent and is directed against a judgment of Jack J., dated 26 May 1938.

(2.) The material facts relating to this appeal may be shortly stated as follows : There was a permanent tenure held by the pro forma defendants as tenants under the principal defendants 1-3, at a rental of Rupees 37-5-9 a year. This tenure was purchased by the plaintiff, Rani Harshamukhi, as executrix to the estate of Raja Manindra Chandra Sinha on 20 February 1929 and it is not disputed that the landlord's fees were duly paid. On 5 March 1931 the landlords defendants commenced a proceeding under Section 105, Ben, Ten. Act, for enhancement of the rent of this tenure under Section 7 of the Act. The plaintiff was not made a party to the proceeding which was started against the pro forma defendants only and even then one of the old tenants who was a minor was not represented by a guardian. There was an ex parte decree passed by the Settlement officer in the proceeding by which the rent was enhanced. The estate of defendants 1-2 was subsequently taken over by the Court of Wards and these defendants through their manager had a certificate filed under the Public Demands Recovery Act against the plaintiff for recovery of rent due in respect of the tenure on the basis of the decree made in the Section 105 proceeding. The present suit was instituted by the plaintiff on 27 April 1934 impleading all the three land-lords as parties defendants and the prayers substantially were for a declaration that the decision in Section 105 case was void and inoperative and not binding on her, and for a permanent injunction restraining defendants 1 and 2 from enforcing the certificate which was filed against the plaintiff.

(3.) It may be mentioned here that in the plaint filed by the plaintiff, it was stated that she received notice of the certificate under Section 7, Public Demands Recovery Act, on 19th February 1934 and filed a petition of objection under Section 9 of the Act on 17 April following, the suit being instituted within ten days after that date. One other fact deserves to be mentioned at this stage, viz. that defendant 3 died sometime after the institution of the suit. The plaintiff did not bring his heirs on the record and 4he result was that the suit abated against them. The suit was contested by defendants 1 and 2 and their defence inter alia was that the suit was premature and was barred under Section 34, Public Demands Recovery Act, as well as under Section 109, Ben. Ten. Act. It was urged that the defendants had no notice of the plaintiff's purchase and the decision in Section 105 case was valid and binding on the plaintiff. The further point taken was that the suit having abated as against the heirs of defendant 3 could not proceed against the other defendants Inasmuch as the decree which was impugned by the plaintiff was a joint decree ob-Siained on behalf of all the three defendants.