AKHOY KUMAR MITTER Vs. SRI NARAIN DEY

JUDGEMENT

(1.) The lands to which these appeals relate are portions of two holdings of 235 bighas and 50 bighas respectively which were settled in 1585 with two persons named Manik Mollah and Kabiruddi Mollah. The plaintiffs are purchasers of these portions. The landlord sued the recorded tenants for rent, obtained decrees and, in execution of these decrees, attached the holdings. The plaintiffs brought these suits for declarations, that these rent-decrees were inoperative as against them and for other reliefs. The suits have been decreed by the Courts below and the defendant No. 1 appeals.

(2.) The first ground taken by the learned Counsel for the appellant is that the plaintiffs have no cause of action inasmuch as their rights have not yet been prejudiced. The observations of the learned District Judge that the jamas have been sold in execution of the rent decrees are said to be inaccurate as nothing has yet been done beyond attaching the property and it is said that a mere attachment is not a sufficient invasion of a person s right to give him a cause of action. It is, however, a very common experience that suits are brought in consequence of the attachment of property, and the Civil Procedure Code allows claims to be made when such an attachment is made. No authority has been shown to me for holding that an attachment does not justify a suit and I am not prepared to hold that the suits are not maintainable on that ground. I may point out also in this connection that the point has never been raised in the Courts below.

(3.) The second point taken is that, having regard to Sections 73 and 88 of the Bengal Tenancy Act, the landlord is entitled to sue the recorded tenants alone. As regards Section 73, that applies only to cases of occupancy ryots. The holdings of Manik and Kabiruddi, when originally created, were holdings of ryots at fixed rates. It is argued that, inasmuch as Manik and Kabiruddi sold portions of their holdings to various purchasers including the plaintiffs, the position of the purchasers cannot be regarded as that of ryots at fixed rates but it must be deemed that they have fallen back into the position of ordinary occupancy ryots. I do not think that this view can be sustained. A ryot at fixed rates under Section 18 of the Bengal Tenancy Act is entitled to sell shares of his holding and from the case of Baistab Charan Chowdhury v. Akhil Chandra Chowdhury 11C.W.N. 217 it is clear that this section also entitles him to sell specific portions of his holding. The mere fact that he exercises this privilege and sells portions of his holding to several purchasers cannot, I think, alter the conditions of the holding and reduce the purchasers to the position of ordinary occupancy ryots.