APSERUDDIN HOWLADAR Vs. ABUAL KASEM

JUDGEMENT

(1.) The facts giving rise to this appeal lie within a short com-pass and may be stated as follows : Under diara touzi No. 6454 of the Faridpur Collectorate there was a tenure owned jointly by the plaintiffs and defendants 10 to 20 of the suit out of which the appeal arises at a yearly rental of Rs. 282-15-0 only. Under this tenure there was a subordinate tenancy held by defendants 1 to 7. The touzi was sold for arrears of Government revenue on 23 March 1934, and it was purchased by defendant 8 in the benami of defendant 9. The plaintiffs got a conveyance of the touzi from the auction purchaser in pous 1341 B.S. Their case is that after the purchase they annulled the intermediate tenure held by them jointly with defendants 10 to 20 and they accordingly pray for a declaration that they are entitled to realize rents directly from the under-tenants who are defendants 1 to 7 in the suit. There was also a prayer for recovery of rents from defendants 1 to 7 for the last two kists of 1341 and the first kist of 1342 B.S.

(2.) The suit was contested by defendants 15 to 19 and their defence in substance was that they were not tenure-holders but raiyats in respect of the lands held by them under the touzi and they having acquired occupancy rights in the same were protected from eviction under Section 37 of Act 11 of 1859. It was further contended that even if they were tenure-holders, as the tenure was in existence when the touzi was created, it came under the second exception to Section 37 of the Revenue Sale Laws and hence could not be annulled. These defendants maintain that they are still entitled to realize rents from defendants 1 to 7 who hold the subtenancy and it was for recovery of their share of the rents in respect of the subtenancy from the year 1338 to the third quarter of 1341 B.S., that they instituted a rent suit against the tenants to which the plaintiffs were also made parties. This rent suit which was Suit No. 65 of 1936 was heard along with the title suit instituted by the plaintiffs and they were disposed of by one and the same judgment by both the Courts below.

(3.) Both the Courts below held that defendants 15 to 19 were tenure-holders and not raiyats and that the tenure was not protected from annulment under Section 37 (2), Revenue Sale Laws. Accordingly, the plaintiffs suit was decreed and they were declared entitled to realize rents direct from defendants 1 to 7 from Pous 1341 B.S. when they purchased the touzi. It is against this decision that S. A. No. 182 of 1938 has been preferred by the contesting defendants. The rent suit which was instituted by defendants 15 to 19 was also disposed of in accordance with the finding in the title suit. The rent suit was decreed in part, and the plaintiffs in that suit were allowed to recover rent for the period prior to the date of the revenue sale. There has been a second appeal against the decision in the rent suit as well and this is S. A. 183 of 1938.