PASHUPATI NATH PAL Vs. DURJODHAN ROY CHAUDHURY

JUDGEMENT

(1.) This appeal arises out of a suit to recover arrears of rent in respect of a darpatni. The facts which are not in dispute in this appeal are these : Biswanath Tewari and Dharmadas Tewari were zemindars of lot Kankora in the district of Burdwan. They granted a putni of this lot to one Chandravati. The latter granted a darpatni of the said lot to one Taraprasanna Chongdar in 1876. The zemindars of 8 annas share of lot Eankora mortgaged their entire share in the zemindary to one Hazarimull in the year 1913. The zemindars of the remaining 8 annas share in the zemindary mortgaged their share to the same person in the year 1917. Hazarimull brought two mortgage suits to enforce these two mortgages in the year 1920. During the pendency of these two suits, Taraprasanna sold his darpatni right to defendants 1 to 6 on 10 May 1923. The final decrees in both the mortgage suits instituted by Hazarimull were made in the year 1925. Eight annas share of the zemindary was purchased by the mortgagee Hazarimull in the mortgage decree obtained on the basis of the first mortgage on 17 September 1926. Proceedings for setting aside the sale were started by the mortgagors. During the pendency of these proceedings and during the pendency of the proceedings in execution of the mortgage decree obtained by Hazarimull on the basis of the second mortgage, Hazarimull obtained two orders from the Court, which passed these decrees as well as which was executing these decrees, under Order 39, Rule 9, Civil P.C., putting him in possession of the 16 annas share of the zemindary as a mortgagee.

(2.) On 15 January 1927, Hazarimull got his name registered as a mortgagee in possession's under the provisions of Land Eegistration Act. On ll July, 1927, Hazarimull instituted a suit to recover arrears of patni rent from Baisakh 1333 to Jaistha 1834 B. Section On 7 November 1927, the plaintiffs purchased the patni under this lot in execution of a money decree against the patnidar. The rent suit instituted by Hazarimull was decreed on 10 November 1927, and a lady named Bishnupriya purchased this patni on 10 April 1928. This sale was confirmed on 15 May 1928. The plaintiffs purchase in execution of the money decree against the patnidar was confirmed on 16 May 1928, and they obtained possession of the patni on 15 October 1928. Bishnupriya took possessioa on 28 February 1929. On 18 April 1933, the plaintiffs brought the present suit for recovery of arrears of rent in respect of the darpatni purchased by defendants 1 to 8 from Taraprasanna for the years 1336 to 1339 B. Section on the basis of their purchase of the patni at the auction sale held on 7 Novem. ber 1927.

(3.) The defence of the darpatnidar defendants is that the plaintiffs have acquired no title to this patni on the basis of their purchase and that Bishnupriya had acquired title to the patni by her purchase on 10 April, 1928. Bishnupriya was not originally impleaded as a party in this suit. She was, however, subsequently added as a defendant in this suit by an order of this Court. Her defence in the suit is the same as that of defendants 1 to 8. The Courts below have accepted the defence of the defendants and have agreed in dismissing the suit. Hence this second appeal by the plaintiffs. Prom the facts stated above, it is clear that the plaintiffs purchase of the patni was prior to that of Bishnupriya. The Courts below, however, have come to the conclusion that the plaintiffs have acquired no title to the patni on the basis of their purchase as Bishnupriya purchased the patni in execution of a rent decree and the plaintiffs purchased the patni in execution of a money decree. If the decree in execution of which Bishnupriya purchased the patni was a rent decree, then her title must prevail. The contention of Mr. Mukherjee on behalf of the appellant is that the decree in execution of which Bishnupriya purchased the patni was not a renf decree inasmuch as (1) Hazarimull, the de- cree-holder, was not the landlord of the patni at the time when the rent suit was instituted, and the decree in the rent suit wag passed and also at the time when the patn : was sold in execution of this decree: (2) that the claim in this rent suit included arrears due for a period during which Hazarimul was not the landlord of the patni; (8) that the plaintiffs who purchased the patni befor the decree were not impleaded as defendant in the rent suit brought by Hazarimull Hazarimull entered into possession of the 16 annas share of the zemindary on the basil of two orders made under Order 39, Rule 9, Civil P.C. This rule is in these terms: Where land paying revenue to Government, or 1 tenure liable to sale, is the subject-matter of a suit if the party in possession of such land or tenure, neglects to pay the Government revenue, or the rendue to the proprietor of the tenure, as the case ma; be, and such land or tenure is consequently order to be sold, any other party to the suit claiming t have an interest in such land, or tenure may, upon payment of the revenue or rent due previously t the sale (and with or without security at the discretion of the Court), be put in immediate possession c the land or tenure; and the Court in its decree ma award against the defaulter the amount so paid, wit interest thereon at such rate as the Court thinks fl or may charge the amount so paid, with interes thereon at such rate as the Court orders, in any ac justment of accounts which may be directed in the decree passed in the suit.