ABDUS SAMAD MOLLA Vs. ABDUL GOFUR MOLLA

JUDGEMENT

(1.) This is an appeal against the decision of the District Judge, Khulna, dated 17 August 1938, affirming that of the Munsif, Third Court of that place. Two plaintiffs, one of whom is the appellant before me, commenced the suit out of which this appeal arises for recovery of khas possession of the lands in suit on establishment of their title as under raiyats with rights of occupancy in respect of the same on the basis of a purchase at a rent sale. They also claimed mesne profits. The plaintiffs case was that the lands in suit appertained to a under-raiyati holding which belonged to Cherajan Bibi and others and they held it under Laban Sheik and his cosharers at a jama of Rs. 6 and odd and the tenants had acquired occupancy rights in the holding by custom. Laban Sheikh and his cosharers sued Cherajan Bibi and others for arrears of rent in respect of this under-raiyati holding for the years 1330 to 1333 B.S. in rent suit No. 191 of 1927, and, having got an ex parte decree put up the under-raiyati holding to sale, and it was purchased by the plaintiffs in May 1929. The sale was confirmed on 29 November 1929, and the plaintiffs seem to have served notices under Section 167, Ben. Ten. Act, upon the defendants who were found to be in possession of the suit lands with a view to annul all interests which they might purport to have in them and as they refused to vacate in spite of these notices, the present suit was instituted.

(2.) The suit was contested by defendants 6, 7, 9 and 10, who are recorded as under-raiyats of the second degree under Cherajan Bibi and others in khatian No. 208-2 of the C.S. records. Their defence was really of a twofold character. It was first contended that the decree obtained by Sheikh Laban and others in the rent suit No. 191 of 1927 could not have the effect of a rent decree and the sale could not attract the provisions of chap. 14, Ben. Ten. Act. The result was that the plaintiffs simply purchased the right, title, and interest of Cherajan Bibi and others, and as these defendants were recorded as under-tenants under the latter, they could not be ejected. The second point taken was that even if the sale was a rent sale, the notice under Section 167, Ben. Ten. Act, not being served within one year from the date of the confirmation of the sale, it was ineffectual in law to annul the interest, and consequently, the plaintiffs suit must fail.

(3.) The trial Court gave effect to both these contentions and dismissed the plaintiffs suit. On appeal, the learned District Judge differed from the trial Court on the first point, and he was of opinion that the decree had the effect of a rent decree under chap. 14, Ben. Ten. Act, but as the notice under Section 167 was not served within one year from the date of the confirmation of the sale, the lower appellate Court agreed with the Munsif in dismissing the plaintiffs suit. It is against this decree of dismissal that the present second appeal has been preferred, and I have to consider the propriety of the decision of the lower appellate Court on both these points. The first point is as to whether the plaintiffs got the holding itself by their purchase at a sale in execution of the decree which Laban Sheikh and others obtained against the under- raiyats and, as such, could annul the sub-tenancy of the contesting defendants under the provisions of chap. 14, Ben. Ten. Act. It is not disputed that prior to the passing of the Bengal Act 4 of 1928, a sale of an under-raiyati holding in execution of a decree for rent due in respect thereof could not be held under the special provisions of the Bengal Tenancy Act: vide Munsar Ali V/s. Arsadulla ( 12) 16 CWN 831. The law has been altered by the amending Act of 1928.