DEBI PROSAD BHAKAT Vs. OFFICIAL TRUSTEE OF BENGAL, EXECUTOR (TRUSTEE IN VEKATATNAMA) TO THE ESTATE OF LEGAL OF LATE MANIK LAL SEAL

JUDGEMENT

(1.) THE hearing of this appeal has taken considerable time, a fact which, however, need not be regretted by any body for we have had the pleasure of listening to an elaborate and earnest argument on behalf of the defendants-tenants and nothing which the ingenuity and industry of the learned Vakil for the appellant could discover in support of the position taken up in the grounds of appeal has teen omitted. But, notwithstanding his forcible argument, we have come to the conclusion that this second appeal must fail on all the points that have been urged before us. At the outset, it may be remarked that there are no merits in this appeal and the question argued before us really turn upon discussion of points of law which are well- understood. THE facts, shortly stated, are as follows. THE tenants-defendants were putnidars of a village under the plaintiff's predecessor up to the year 1291. In execution of a rent-decree against the defendants, the putni right was sold and purchased by a person whom we will describe as "A." THE putni was again put up for sale for arrears of rent and another person, whom we will describe as "B," purchased it at the sale. It was sold for the third time for arrears of rent and purchased by a person, whom we will describe as "C." THEre was a fourth sale for arrears of rent and it was purchased by the predecessor-in-interest of the present plaintiff. At the time when B was the putnidar the tenants-defendants made default m payment of rent. THEreupon, B instituted a suit for arrears of rent in respect of the holdings in the possession of the tenants-defendants which consisted of 7 jotes. THE predecessor-in- interest of the present plaintiff having succeeded, as stated above, to the interest of the putnidar excited a decree for arrears of rent obtained by "B" and caused the 7 jotes to be put up for sale in this manner, that, is to say, they were divided into two jotes, one of 68 bighas, 3 cottas with a rent of Rs. 163-12-anaas 12-gandas and another of 111 bighas 4 cottas with a rent of Rs. 139-4 annas. At the sale of these two jotes, the predecessor-in-interest of the present plaintiff was declare to be the purchaser. This sale was, however, set aside and a fresh sale took place at which again the predecessor-in-interest of the present plaintiff was declared to be the purchaser. THEreupon, on an application by the tenants defendants, the sale in respect of the jote of in bighas and 5 cottas was set aside and the tenants defendants remained in possession thereof. (See Exhibit "J"). With reference to the second sale in respect of the jote of 68 bighas and 3 cottas, it appears from the judgment of the learned Subordinate Judge dated the 22 March, 1907 that no application for setting aside that sale was nude by the tenants defendants. THE result, therefore, was that the proprietor, that is to say, the predecessor-in-interest of the present plaintiff took delivery of possession of an area of 68 bighas and 3 cottas after the sale in execution of the choree for arrears of rent and in satisfaction of tie decree for arrears of rent. THE tenant defendants, on the other hand, remained in possession of 111 bighas and 5 cottts, an area which formed the balance of the lands comprised in the original 7 jotes. This was sometime in 1903 and it appears that thereafter the tenants-defendants had remained in possession of the last in rationed area without payment of any rent. THE landlord sometime in 1906-1907 instituted two suits for arrears of rent in respect of the lands comprised in the original 7 jotes. THE tenants replied that they were not bound to pay any rent for the land; of the original 7 jotes for the simple reason that they were not in possession of a portion of those lands, namely, 68 bighas 3 cottas, possession of which had been taken delivery of by the landlord after the sale in execution of the decree for arrears of rent. It was contended on behalf of the tenant, in the sad two suits for arrears of rent that there had teen a wrongful eviction or ouster from a portion of the lands of the original jote at the instance of the landlord and that in law there followed a complete suspension of rent, this view was given effect to by the Courts and the result was that the landlord was met with the answer that, in the circumstances, no claim for arrears of rent could be sustained. It is, however, to be observed that in the rent-suits it was not brought to the notice of the Courts by either side that 68 bighas and 3 cottas had been sold in execution of a decree for arrears of rent and that the landlord had purchased the same and had taken delivery of possession thereof in satisfaction of the decree for arrears of rent. Be that as it may, it appears from the proceedings in the Record of Rights cases that in respect of 111 bighas and 5 cottas the defendants were recorded as non-mokarari permanent tenure-holders under the plaintiff with a rent of Rs. 133-14-1 pies. THEreupon the present plaintiff applied for settlement of pair and equitable rents under the provisions of Section 105 of the Bengal Tenancy Act. He alleged that the defendants-tenants were not tenure-holders but merely occupancy raiyats and he claimed an enhancement of rent under the provisions of the Bengal Tenancy Act. THE defendants-tenants, being encouraged by the result of the litigation in the previous rent-suits, put forward the contention that, inasmuch as they had been evicted from a portion of the lands of the original 7 jotes, the landlord was not competent to ark the Revenue Officer to settle fair and equitable rents in respect of what may be called the balance area. THE Revenue Officer declared that the defendants held a certain plot free of rent and he settled a certain sum as a fair and equitable rent in respect of the area of in bihgas and 5 cottas being interest No. 138 in the Record of Rights. THE matter was carried on appeal by the tenants-defendants to the learned Special Judge and it was held that, instead of one consolidated rent for the area of 111 bighas and 5 cottas referred to above, the Revenue Officer ought to fix seven jamas in respect of 7 jotes and for that purpose he directed a remand to the Revenue Officer. Against that order the present appeal has been la d and it has been, as remarked above, very strenuously argued by the learned Vakil for the appellant that, in the circumstances to which reference has already teen made, there should follow a complete suspension of rent and that the landlord was not entitled to ask the Revenue Officer to settle fair and equitable rents under Section 105 of the Bengal Tenancy Act. Now to that, the short answer is that there was, as a matter of fact no wrongful eviction whatsoever at the instance of the plaintiff-landlord. THE rent-decree in executing whereof the sale followed was binding on the tenants-defendants and, in the circumstances of this particular case, the long catena of cases dealing with the question of suspension of rent has no application whatsoever and the tenants-defendants were not entitled to invoke the doctrine of suspension of rent in this case. It is argued, however, that whether the tenants-defendants had any merits or not or whether the circumstances disclosed in the case attracted the doctrine of suspension of rent or not, it must neverthless be held, having regard to the result of the decision in the previous rent suits in 1906-07, that the plaintiff-landlord cannot in this proceeding oppose the invocation of the doctrine of suspension of rent. In other words, it is said that he is bound by the decisions in the rent suits, which operated as res judicata. If this were the law it would, indeed, be very strange but having regard to the facts of this case and having regard to the way in which the rent-suits were disposed of, we are of opinion that this is not the law. In the first place, tie rent suits were in respect of payments of rent of 7 jotes. THE present suit is for fixation of a fair and equitable rent in respect of one jote of 111 bighas and 5 cottas. In the second place, it is by no means clear on the materials before us that the original 7 jotes did not cease to exist after 1963. In the third place, it may be remarked that if, as a matter of fact, the 7 jotes had already ceased to exist before the rent suits were disposed of and if, as a matter of fact, in the facts of this particular case, there was no wrongful ouster at the instance of the landlord, the decision in the rent-suits could not have, in any view of the matter, been correct. We need not go into the question as to-whether Or not the decisions in the rent suits can operate in these circumstances as res judicata, a question in respect of which there is a conflict of judicial authorities. But we prefer to rest our decision on the simple ground that on the facts as disclosed in the present proceedings the doctrine of res judicata cannot be invoked. We have thus far proceeded on the footing that an appeal lay to this Court and that such appeal has been rightly preferred; we think, however, having regard to the decisions reported as Mothur Chandra Majumdar V/s. Tara Sunkar Ghose 7 C.W.N. 440 and Mathura Nath Roy V/s. Basanta Kumar Chakravarti 2 Ind. Cas. 572 : 36 C. 512, that the appeal to this Court at the instance of the tenants-defendants is an incompetent appeal, because this appeal is really an appeal against an order of remand passed by the Special Judge under the provisions of the Bengal Tenancy Act. Our attention has been drawn to the case reported as Manmotha Nath Dey V/s. Gadadhar Manna 41 Ind. Cas. 751 : 45 C. 638 : 28 C.L.J. 155, but we think that the present case is covered by the cases reported as Mothur Chandra Majumdar V/s. Tara Sunkar Ghose 7 C.W.N. 440 and Mathura Nath Dey V/s. Basanta Kumar Chakravarti 2 Ind. Cas. 572 : 36 C. 512, rather than by the case reported as Manmotha Nath Dey V/s. Gadadhar Manna 41 Ind. Cas. 751 : 45 C. 638 : 28 C.L.J. 155. We might have disposed of this appeal on the short ground that no, appeal lay to this Court, as we have just indicated, but out of respect to the argument which has been addressed to us, we have preferred to dispose of the appeal after considering all the paints that had been addressed to us.

(2.) THE result is, that this appeal fads and is dismissed with costs hearing fee, three gold mohurs.