RAM JIBAN BHADRA Vs. TAJ-UD-DIN KAZI

JUDGEMENT

(1.) The main facts of the suit out of which this appeal arises, are not in dispute.

(2.) Defendant No. 13, one Ramjiban Bhadra, was the holder of a mortgage of a certain patni executed in his favour by the patnidars in 1894. On this mortgage he sued on the 3rd March 1902, and he obtained the usual decree on the 17th May 1905.

(3.) Meanwhile there had been several defaults in the payment of the rent of the patni. In March 1901, the first of these occurred, and on that occasion Benode Behari Dey, who was the darpatnidar in respect of 17 3/4 gundas of the patni, advanced the arrear so as to save the tenure from sale under the Bengal Patni Taluks Regulation, 1819, (VIII of 1819), and was, in the following July, under the fourth paragraph of Section 13 of that Regulation, placed in actual possession. Benode thereafter, in October 1901, conveyed all his rights as darpatnidar to the plaintiff, Sheikh Taj-ud-din Kazi, who succeeded in due course to possession of the tenure and enjoyment of the profits thereof. In this situation, the plaintiff paid these instalments of the patni rent; but in 1903 he failed to pay the fourth as it fell due, and in consequence proceedings were once more taken under the Regulation, the patni being eventually put up for sale and purchased by Ramjiban Bhadra on the 15th May 1904. The surplus sale-proceeds, after satisfaction of the claim for rent, were deposited in the Collectorate, as provided by the Regulation, and the present action was brought by the Sheikh against the patnidars and others (including Ramjiban) for a declaration that he was entitled, before all others, to recover from that deposit the amount which he had paid for the original darpatni-dar s rights, as well as the three payments subsequently made by him on account of the patni rent. The claim was opposed by Ramjiban on the strength of his mortgage-decree; but it succeeded on the whole, and that defendant has now appealed.