SHOSHI KUMAR BHATTACHARJEE Vs. GOUR KISHORE CHAKRAVARTI

JUDGEMENT

(1.) In this case, the plaintiffs sued the defendants for rent for six years in respect of certain homestead land. The defendants held the land under a man who was father of one of the plaintiffs and brother of the others. They executed a Kabuliyat in his favour, the period of which has not terminated. The suit was brought after the death of the original lessor and the lower Appellate Court has held that it must fail on the ground that the plaintiffs are not registered proprietors within the meaning of Section 78 of the Land Registration Act (VII of 1876 B. C), and are not entitled to any relief under Section 81 of the same Act. Without considering the question whether the plaintiffs in this case are affected by Section 78, we are of opinion that the Judge has erred in holding that the existence of the written contract does not, affect the provisions of the previous section. The contract is still in existence. The defendants are holding the land under their rights acquired under that contract. There is, therefore, a written contract and nothing contained in Section 78 can be held to interfere with the conditions of that contract, one of which is that the defendants shall pay the rent which the plaintiffs seek to recover from them. It is argued before us that the plaintiffs are not entitled to sue as representatives of the deceased. The Munsif, however, held that they were so entitled and this finding has not been upset and apparently was not attacked in appeal.

(2.) The result is that this appeal must succeed, the judgment and decree of the lower Appellate Court are set aside and its other findings being in favour of the plaintiffs, the suit must be decreed with costs in this Court and in the lower Appellate Court. D. Chetterjee, J.

(3.) I agree.