RAJESWAR PROSAD BHAKAT Vs. RAJANI NATH BANERJEE

JUDGEMENT

(1.) The suit out of which this appeal has arisen, described by the trial Court as " a suit to enforce certain statutory mortgages " was instituted on 21 April 1926, by three idols, Sree Sree Iswar Lakshmi Narain Jiu Thakur, Sree Sree Iswar Sarodia Durga Debi Thaku-rani and Sree Sree Iswar Jagadhatri Debi Thakurani, represented by their shebait, Rajani Nath Banerjee. As stated in the plaint the claim in suit was for recovery of money on declaration that the property mentioned in Schedule (ka) of the plaint was liable for the amounts paid or deposited under Section 270, Ben. Ten. Act, and under Section 13, Bengal Patni Regulation (Regn. 8 of 1819), for the protection of the darpatni interest of the idols, the plaintiffs in the suit. The payments were made by the shebait for the time being, on various dates, and they were necessitated by the zamindar's refusal to receive the patni rent from the she-bait. The first payment was made on 4 August 1914, in Execution Case No. 83 of 1914, arising out of Rent Suit No. 104 of 1913; the second payment was made on 20 March 1915 in Execution Case No. 31 of 1915, in which the decree in Rent Suit No. 1142 of 1914 was sought to be executed; the third payment was made on 8 September 1915 in Execution Case No. 415 of 1915, arising out of Rent Suit No. 34 of 1915; the fourth payment was made on 19 February 1916, in Execution Case No. 858 of 1915, arising out of Kent Suit No. 1409 of 1915; the fifth related to the decree in Rent Suit. No. 1322 of 1915, sought to be executed in Execution Case No. 887 of 1915. The next payment in order of time was the one made by the shebait on 14 May 1916, in proceedings initiated by the zamindars under the Patni Regulation. The seventh and the last of these payments by the shebait to which the present suit relates was the one made by the shebait on 9 May 1917, in execution Case No. 165 of 1917 arising out of Rent Suit No. 1404 of 1916. The zamindars, defendants 18 to 22, in the suit out of which the present appeal has arisen, or their predecessors-in-title had obtained decrees for rent against the patnidars under them, in the six suits for rent referred to above, and had taken steps as provided by Regn. 8 of 1819 for realization of the patni rent in one of the seven instances mentioned above. The zamindars demands, it would appear, were satisfied by the deposits or payments made by the shebait. The she-bait obtained possession of the Patni Mahal on 12th November 1915, under Section 171, Ben. Ten. Act, and according to statements made in the plaint, remained in possession till 26 February 1926, when possession of the Mahal, it is said, was given up by the shebait.

(2.) For a clear appreciation of the position of the parties in regard to the claim in suit a reference to some other facts is necessary. The zamindari interest, known as estate Kanior (represented in the suit by defendants 18 to 22), touzi No. 612 of the Birbhum Collectorate was settled in patni. The contesting defendants in the suit, defendants 1 to 8, the appellants in this Court, own a 12 annas 6 gandas, 2 koras and 2 kran-tis share of the patni. The patni tenure, created in 1855, was in course of time, let out in darpatni. One darpatni was created in 1183, in respect of the 7 annas share of the patni, and by the terms of the Darputni kabuliyat, dated 2 February, 1883, the obligation to pay the patni rent due to the zemindar in respect of the 7 annas share, was placed on the darpatnidar. There were two other darpatnis created in the year 1884, in respect of each of the remaining.. 2 annas 13 gandas, 1 kora and 1 kranti shares. Under these three darpatnis there was one sapatni taluk created in favour of Hari Narayan Banerjee the father of Bajani Nath Banerjee the she-bait who represents the idols in the present suit. The dedication of property to the idols was by this Hari Narayan Banerjee, and the entire sapatni taluk was dedicated on 20 June 1905, to the two. idols Durga and Jagadhatri, along with, 1 anna share of the patni which was owned by Hari Narain Banerjee. The three darpatnis were dedicated after their purchase by Hari Narayan, to the three idols Lakshmi Narayan, Durga and Jagadhatri on 16 June, 1915. It was. by virtue of the interests thus created in favour of the idols that it became necessary for the shebait for the time being to make the payments or deposits in the various proceedings to which reference has been already made in detail. It is necessary to mention in this connexion that the plaintiffs have proved that so-far as the rent suits and the proceedings under Regn. 8 of 1819 for the realization of patni rent were concerned, they originated from, and that they were the outcome of the zamindar a refusal to receive patni rent from the shebait. The plaintiffs evidence in support of this part of the case has not been challenged by the contesting defendants in the suit. It has also to be noticed that so far as the suits for rent, the decrees obtained in these suits, and the proceedings in execution of the decrees, were concerned, no objections was at any previous stage taken either by the contesting defendants or by any party whatsoever. It was never asserted much less made out, that the suits for rent were not properly constituted owing to the absence of necessary parties, nor was it stated at any time previous to this, that the decrees were not decrees for rent as contemplated by law, and that the proceedings in. execution of these decrees were not, and could not be under Ch. 14, Ben. Ten. Act.

(3.) It appears that the shebait of the idols obtained possession under Section 171, Ben. Ten. Act, on 12 November 1915, possession having been delivered on that date by an order of the Court passed in Execution Case No. 31 of 1915,. arising, out of Rent Suit No. 1142 of 1914. The learned Subordinate Judge, in the trial Court overruled all the contentions raised by the contesting defendants 1 to 8 in the suit. The question of maintainability of the suit in the present form in its various aspects, the question of limitation, the plea of res judicata, the point raised as to the election of remedies by the plaintiffs, as also the question of the factum and the nature of the payments or deposits of which mention had been made in the plaint, were decided against the defendants, and in favour of the plaintiffs; and the trial Court upon the decision arrived at by it, passed a decree in the suit in this form: The suit be decreed preliminarily. Let a commissioner be appointed to take the accounts during the possession of the plaintiff up to this date, (i. e., 25 January 1928). He shall examine the accounts as supplied by the plaintiff, in presence of the defendants and report to this Court the result of his investigation from after to- day, (i.e., 25 January 1928). Plaintiff shall deposit in this Court to the credit of the suit the yearly profits of the patni until further orders. Proper order in respect of the amount thus deposited will be passed later on. Question of costs will be decided later on.