TIRTHABASI SINGH RAI Vs. PURNA CHANDRA NAG

JUDGEMENT

(1.) This appeal arises out of a suit which was described to us in the opening by the appellant as one under Section 149, Sub-section (3) of the Bengal Tenancy Act, and it was made a matter of complaint that, the onus was cast on the plaintiff to his detriment and to the undue advantage of the: defendants. It was urged that this operated prejudically to the plaintiff in this suit and it could not have been the intention of the Legislature in enacting Section 149 to alter; the position of the rival parties as to matters of proof. This is a forcible argument taken in the abstract, but, applied to the circumstances of this case, it has no value. To begin with, I fail to see that there has been any such possession as could have brought into play the provisions of Section 28 of the Indian Limitation Act, having regard to the findings of the lower Appellate Court. Therefore, it seems to me that in that respect the plaintiff in this case has not been prejudiced, nor the defendants advantaged by the course of procedure that has been adopted. That is probably sufficient for the disposal of the case.

(2.) But I would point out that while this suit is described as one under Section 149, Sub- section (3), it is more than that. Now, as I read the scheme of the Act and Section 149 in relation to that scheme, this particular section was introduced for the purpose of protecting a tenant against the harassment of litigation consequent on rival claims of title to the reversion on the tenant s interest. The section appears to me to afford a very simple and expeditious machinery. It enables a defendant, who admits that money is due from him on account of rent, to plead that this money is due not to the plaintiff but to a third person, and to utilize that plea, provided he pays into Court the amount admitted to be due. When this is done, notice is to be given to this third person whose title the tenant sets up. Then, it is provided in Sub-section (3) that "unless the third person within three months from the receipt of the notice institutes a suit against the plaintiff and therein obtains an order restraining payment out of the money, it shall be paid out to the plaintiff on his application." The final sub-section provides "that nothing in this section shall affect the right of any person to recover from the plaintiff money paid to him under Sub-section (3)". Now, I have said that this suit is not one exclusively under Section 149, Sub-section (3), and my reason for so saying is this: Sub- section (3) contemplates a suit which culminates not in a decree but in an order of a limited kind, an order restraining payment out of the money. It is, therefore, an order not finally decisive of the substantial rights of the parties, but providing a machinery for the purpose of carrying out the scheme whereby it is sought to relieve a tenant from harassment. Here more than such an order was sought. Payment of the money was prayed and from the issues formulated in the suit on which the parties went to trial it is manifest that the contest between the parties was one of title. Cases have been brought to our notice for the purpose of determining what is the true effect of Sub-section (3) of Section 149, but in those cases, the same course has been pursued as in this; the plaintiff has gone beyond the provision of Section 149, Sub-section (3) with the consequences indicated. If a third person desires to retain the benefits which the procedure of this section would secure to him, then he must keep his claim within the terms of this section and be content with an order. It is not for us now to say whether an appeal would lie from such an order, but I feel constrained to say that the language of Section 153 does not sustain the argument that an appeal would lie under that section. To come back to that which is the matter immediately before us, for the reasons which I have indicated, the findings of the lower Appellate Court appear to me to be conclusive against the claim now advanced by the plaintiff-appellant, and, therefore, this appeal must be dismissed with costs. N. Chatterjea, J.

(3.) I agree.