HARAN CHARAN MANDAL Vs. HIRALAL NASKAR

JUDGEMENT

(1.) The plaintiffs in this suit in effect claim a statutory lien on an occupancy holding by virtue of a payment made under Section 171, Ben. Ten. Act, to prevent a sale of that holding under chap. 14 of that Act. The suit was dismissed by the trial Court, but on appeal the learned Additional District Judge of 24-Parganas, has given the plaintiffs a decree virtually declaring their lien. The facts which it is necessary to state for the disposal of the appeal may be briefly set out : The holding is said to have been a non-transferable occupancy holding, and admittedly it was held at one time by one Ramanath Mandal. Ramanath died, leaving three sons and heirs, Kshetra, Haran and Paran. Paran died unmarried leaving his surviving brothers as his only heirs and legal representatives. After Ramanath's death therefore the holding came in course of time to be represented by Kshetra and Haran. It is said that in the year 1902 while Paran was still living, Kshetra, purporting to act for himself and as guardian of his two minor brothers, sold away half of the holding to one Nabin. The landlord, however, refused to recognize this transfer. The present plaintiffs are heirs of Nabin, and they have been treated in these proceedings as unrecognized transferees of a portion of the holding.

(2.) In 1930 the landlord instituted a suit for arrears of rent of this holding for the years 1333 to 1336 B.S., and in due course obtained an ex parte decree. The decree was afterwards sought to be put into execution under chap. 14, Ben. Ten. Act, whereupon the present plaintiffs, claiming to be persons whose interests were likely to be affected by the sale, deposited the decretal amount with costs in Court under Section 170. By virtue of such- deposit they claim to have acquired a statutory lien over the holding, and also to be entitled to possession of it. It is said that they did obtain actual possession as such mortgagees, and in that capacity sued the tenants on the lands, defendants 4 to 6 for rent. The original tenants, the heirs of Ramanath being present defendants 1 to 3 also brought a suit for rent against the same tenants and obtained a decree. This led the plaintiffs to institute the present suit, whereby they asked for a declaration that the decree obtained by defendants 1 to 3 against defendants 4 to 6 was fraudulent and collusive, and that in any case, it did not affect their interest as the holders of the statutory lien over the tenancy. The plaintiffs also asked for an injunction to restrain defendants 1 to 3 from executing their decree, and further prayed for a refund of a certain sum of money which they are said to have already recovered from the tenants under the decree. The lower appellate Court, while granting the plaintiffs prayer for declaration, has refused the injunction and the refund.

(3.) This decree is resisted by defendants 1 to 3 on the ground that Section 171, Ben. Ten. Act, has no application to this case. This position is sought to be supported on a two-folds basis. It is first contended that there was no rent decree at all which could be executed under chap. 14 of the Act, and to. avert which deposit could be made under Section 171. Secondly, it is urged that in any event, the plaintiffs being in the position of cosharer tenants, though not recognized by the landlord, were not entitled to make a deposit under Section 170, or to claim the benefit of Section 171 by virtue of such deposit. Either of these grounds, if made out against the plaintiffs, would be enough to dispose of their claim.