BATUK NATH MANDAL Vs. BEPIN BIHARI CHAUDHURI

JUDGEMENT

(1.) The plaintiffs and others including the defendant No. 1 were co-sharers in a certain putni tenure, the share of the plaintiff being three-sevenths of the whole and that of the defendant No. 1 two-sevenths. It appears, however, that the name of the defendant No. 1 was alone recorded in the landlord s books as the holder of the tenure. The tenure, therefore, so far as the landlord was concerned, was represented by that defendant. In that state of things in the year 1307, the latter sold his share of the tenure to a stranger who is not a party to the suit, and the case has been argued on the footing that the share passed to the vendee with effect from the beginning of the year 1308. Subsequently, the landlord brought a suit for recovery of arrears of rent of the tenure in respect of the years 1307 and 1308, and no steps having been taken for the rectification of the landlord s books in which the name of the defendant No. 1 still stood as the holder of the tenure, the suit was brought and a decree was obtained against him alone. In execution of the decree, the tenure was sold by auction but the sale was set aside under the provisions of Section 310A of the Code of 1882 upon the plaintiff depositing in Court the sum of Rs. 383-8-6 consisting of the amount (Rs. 358-8-6) due under the decree and the amount (Rs. 25) due as statutory compensation to the auction-purchaser. The plaintiff s claim in the present suit relates to the sum so deposited and may be stated as follows. Deducting three-sevenths of the whole as payable in respect of his own share of the putni, he seeks to recover two-sevenths from the defendant No. 1, liability for the balance being assigned in the plaint to other share-holders who have since paid what was due from them and with whom in this appeal we are not concerned. The defendant No. 1 by his written statement denied all liability on the ground that he had parted with his share of the tenure. The first Court found in the plaintiff s favour and gave him a decree for the whole amount of his claim against the defendant No. 1. On an appeal preferred by the latter, the Subordinate Judge in the Court below held that he was liable only in respect of so much of the claim as could be attributed to default in the payment of rent due for the year 1307 and that no liability rested upon him in respect of the year 1308. The Subordinate Judge accordingly modified the decree of the first Court and reduced the amount recoverable by the plaintiff thereunder by one-half. The plaintiff has appealed to this Court on the ground that no such reduction should have been made.

(2.) Two questions have been urged before us. The first arises upon a preliminary objection taken on the respondent s behalf to the admissibility of the appeal. It is contended that, inasmuch as at the date of the institution of the suit, the respondent had no interest in the tenure, the suit falls outside the scope of Article 41 of the second Schedule of the Provincial Small Cause Courts Act and being, therefore, a suit of the nature cognizable by a Court of Small Causes, no second appeal lies (section 102, Civil Procedure Code). The second question is as to the liability of the respondent in respect of the year 1308. He no longer disputes his liability in respect of the year 1307.

(3.) Before dealing with those questions, it will be convenient to indicate the nature of respondent s position in the suit brought by the landlord.