SHEIKH SONGSOR ALI Vs. JAGANNATH PAL

JUDGEMENT

(1.) The plaintiff-appellant before us seeks to recover arrears of rent from the principal defendants Nos. 1 to 5. These defendant hold the land in question as burgadars or cultivators paying half the produce by way of rent, it appears that the original landlord to whom the rent was due way the defendant No. 7 whose title has since been conveyed to the defendant No 6. The plaintiff claim to the rent payable by the defendants Nos. 1 to 5 is based on a settlement which, as he alleges, he obtained from the defendant No. 7. This was an oral settlement not reduced to writing, and if at the trial it was tut disputed that there was some such settlement, the parties ware not agreed as to its terms. There being no document to construe, any question as to the nature of the settlement or its terms, in a question of fact.

(2.) As I read the judgment of the learned Subordinate Judge in the lower Appellate Court, he has found on the evidence that the right obtained by the plaintiff from defendant No. 7 was mereiy the right to cultivate tins land as a raiyat and that there was no assignment to the plaintiff of the right to receive rent from the defendants. The case, therefore, would appear to fall within the decision of this Court in Ram Kanai Dass V/s. Fakir Chand Das 8 C.W.N. 438.

(3.) In that case also the defendant in possession was a burgadar, the plaintiff claiming the rent as a jotedar under a subsequent but apparently unwritten lease granted by the superior landlord. There was nothing definite to show what the precise rights of the plaintiff were but the lower Appellate Court had found that the relationship of landlord and tenant did not exist between him and the defendant burgadar, on the ground that there was no proof that the superior landlord had assigned to the plaintiff the right to collect rent from that defendant. The plaintiff's appeal to this Court came first before Mitter, J., who concluded in his favour. The learned Judge was of opinion that, "as between the superior landlord and the defendant, the right of the one to receive rent from the other has passed by the creation of the intermediate holding to the plaintiff." He considered that it was immaterial whether the plaintiff was called a jotedar or a tenure-holder and that no formal assignment was necessary, particularly as the Munsif had found that the landlord did not object to the plaintiff receiving rent from the defendant. The defendant having appealed, however, under the Letters Patent, it was held by Sir-Francis Maclean, C.J., and Parjiter, J., that upon the finding of the lower Appellate Court the suit tor rent could not be maintained.