TULSI AHIR Vs. RAM DAS SAHU

JUDGEMENT

(1.) The suits out of which these appeals arise are in form suits for rent. In fact they are very clearly suits for possession by one person claiming title to the land against another. Five suits for rent were brought by the plaintiffs on this allegation that the rent was due and the pro forma defendants were added as co-sharers the suit being brought under Section 148-A, Bengal Tenancy Act, and the claim against the co-sharers was that if it should be held that the tenants had paid the rent to the pro forma defendants that then the pro forma defendants should be made to disgorge a proper proportion of the rent so received by them.

(2.) The defence that was put in both by the tenant defendants and the pro forma defendants was that the plaintiffs had in fact no title to sue and the following facts were relied upon. It appears that the proprietor defendants had a 7 annas odd share in the village and in November 1903 the proprietors gave 4 annas 10 gandas out of this 7 annas to the plaintiffs in usufructuary mortgage, but that since the year 1914 the plaintiffs had not been in possession and that the rent had been collected by the pro forma defendants from the tenant defendants and that the plaintiffs since the year 1914 had not collected a single pice at rent and in fact in the year 1919 the plaintiffs had made a complaint in writing against the pro forma defendants alleging the fact of the mortgage and alleging that they had been dispossessed in the year 1914 and threatening legal proceedings unless their possession as mortgagees was restored. Needless to say if the allegation by the plaintiffs in their complaint in the year 1919 were true by the date of these suits in 1929 the position of the plaintiffs as mortgagees in possession and as mortgagees at all had come to an end.

(3.) It was found as a fact by the trial Court that the rent had throughout been paid by the tenant defendants to the proprietors the pro forma defendants, and that the plaintiffs had in fact been out of possession since July 1911 and were not in the position of mortgagees in possession. The plaintiffs in appeal to the District Judge relied upon the fact which was undenied that they had in fact been registered and were still on the register recorded as mortgagees in possession.