JAGABANDHU NANDI Vs. ABDUL HAMID MEA

JUDGEMENT

(1.) THIS appeal is preferred by some of the defendants who bought at an auction-sale some property which had been included in a mortgage by the defendant No. favour of the plaintiff. The defendants say that the sale was a rent sale at which they purchased and that after they had purchased, they took steps under the Bengal Tenancy Act to annul the encumbrances, and in consequence; the property in their hands is exempted from the mortgage liability. The whole question turns upon whether or not the decree in execution of which the defendants made their purchase was a rent decree, and that again turns upon the question whether the plaint which led up to the decree was a plaint such as is contemplated by Section 148-A of the Bengal Tenancy Act. The learned Munsif held that the plaint was properly drawn up under Section 148-A of the Bengal Tenancy Act. The learned Subordinate Judge on appeal took a contrary view and he relied on the decision in the case of Baikunta Nath Sen V/s. Ramapati Chatterjee (1917) 27 C.L.J. 101. It appears to me that the learned Judge has really misunderstood that decision. If the opening paragraphs of that judgment are read, it will be seen that there was practically no attempt on the part of the plaintiff in that suit to comply with the provisions of Section 148-A of the Tenancy Act. There was only a casual reference to the fact that some share of the rent might be due, to the co-sharers and, if necessary, the plaintiff might be allowed to amend his plaint so as to secure a decree for the whole sum. That decision, I think, stands by itself on a set of facts which may be distinguished from the facts of other cases. On the other hand, there are several cases [Nandalal Chowdhury V/s. Kala Chand Chowdhary (1910) 15 C.W.N. 820 and Brohmandannath Deb Sirkar V/s. Hem Chandra Hitter (1914) 18 C.W.N. 1016] and later cases in which the facts appear to be very similar to those in the present case. All of them have this common feature that the plaintiff in each case made an honest ] effort to frame his suit in such a manner as to comply with the provisions of Section 148-A of the Bengal Tenancy Act. In the present instance, the plaintiffs certainly tried to do so and I think they succeeded. A translation of the plaint has been placed before us and it appears that the plaint mentioned what was the rent payable annually in the 16-annas share, what was believed to be due altogether for the period in suit with damages in the 16 annas and then what was due to the plaintiffs in their share, what was payable in the different shares and what was payable to the other landlords in their shares. Then the plaint went on to allege that the other landlords refused to let the plaintiffs know what was due to them and the plaintiffs had been unable to ascertain that and on that account they asked for a decree for the amount due to themselves alone. They also made an alternative prayer that, if the other landlords wished to be added as plaintiffs on disclosing what was due to them, then they might be transferred from the category of defendants to that of plaintiffs. In my opinion, there was sufficient compliance with the law as set out in Section 148-A of the Bengal Tenancy Act in the rent suit which led up to the defendant's purchase. Accordingly, l hold that defendants- appellants bought the property at a rent sale and then made it free from the mortgage liability. The result is that this appeal is allowed, the judgment and decree of the lower Appellate Court are set aside so far as plots Nos. 1 and 2 are concerned and those of the Court of first instance are restored with costs in this Court and in the Court of appeal below. Suhrawardy, J.

(2.) I agree.