MANINDRA CHANDRA ROY CHOWDHURY Vs. GOPI BALLAV SEN

JUDGEMENT

(1.) This is an appeal on behalf of the tenants-defendants in a suit for recovery of arrears of rents. The material facts lie within a short compass and are for the most part undisputed. One Chandra Mohan Roy Chowdhary had certain shares in four revenue-paying estates to wit touzies Nos. 162, 46, 207-1 and 338E of the Rangpur Collectorate. After the death of Chandra Mohan, his executor Raja Janaki Ballav Sen, granted a putni in respect of these interests in favour of defendants 1 and 2 on 27 May 1896, at an annual rental of Rs. 11,290. In the kabuliyat which was executed by the putnidars, they agreed to pay the revenues and cesses payable by the zemindars out of the rent reserved and pay over the balance as munafa to the landlords. Defendants 3 to 7 are the heirs of Chandra Mohan of whom defendants 3 to 5 have got a moiety share in the properties left by the latter and the other 8 annas share belong to defendants 6 and 7. Defendants 3 to 5 executed a usufructuary mortgage bond in favour of the father of the plaintiffs in June 1922, to secure an advance of Rs. 37,000 and by the said mortgage bond they conferred upon the mortgagee the right to realize rents in respect of the putni in their 8 annas share. It is on the basis of this mortgage bond that the plaintiffs commenced the present suit for recovery of rent due in respect of the putni in 8 annas share, making the other 8 annas cosharers parties defendants. These defendants subsequently got themselves transferred to the category of plaintiffs.

(2.) The suit was resisted by defendants 1 and 2. A number of pleas were taken in the written statement but the substantial defence of the tenants was that touzi No. 162, which was one of the estates to which this putni appertained was attached by the Collector under Section 99, Bengal Cess Act, and consequently nobody except the Collector had any right to recover rents payable by the tenants in respect of the said putni. It was further averred that the sum realized by the Collector from the properties in suit far exceeded the sum which was payable as cesses to the Collector and as these sums were to be regarded as deposits to the credit of the plaintiffs their demands were fully satisfied. It may be stated here that the attachment by the Collector under Section 99, Bengal Cess Act, was effected on 30 November 1933 and the notification was withdrawn in December 1936.

(3.) The learned subordinate Judge who heard the case negatived the defence of the tenants defendants and gave the original and the added plaintiffs a decree in full. He held inter alia that there was no proper publication of the notification under Section 99, Cess Act, and even if there was a proper attachment, that could not operate as a bar to the institution of the rent suit or the recovery of a decree. It was said that Section 99 only restrained the actual payment of rent only. The third ground upon which the learned Judge based his decision was, that as the putni was held under four touzis of which one only was under attachment by the Collector and as the rent was a consolidated rent which was not capable of being apportioned, Section 99, Cess Act, had no application. It is against this decision that the present appeal has been preferred and Mr. Gupta, who appears in support of the appeal, has challenged the propriety of the decision of the trial Court on all these three points.