ARUN CHANDRA SINHA BAHADUR Vs. SAROJIT SEN GUPTA

JUDGEMENT

(1.) This is a Letters Patent appeal from the decision of oar learned brother Patterson, J., in a suit for recovery of arrears of rent which was brought under the following circumstances: A putni tenure called Putni Taluq Lakshmi Narayan Bakshi was sold in auction for arrears of rent under Regn. 8 of 1819 on the 1 of Agrahayan 1330 B.S., the auction purchasers being the plaintiffs who are themselves the zamindars. Under this putni there is an under-tenure called a howla which was held by one Rajkumar Sen, the predecessor-in-interest of defendants 3 to 8 and under them defendants 1 and 2 are the tenants in possession as raiyats. It has been found that the greater part of the land of the howla has been diluviated and that only the land comprising the holding of the tenants defendants has remained intact. The plaintiffs brought the present suit for recovery of arrears of rent in respect of the raiyati holding for the period 1328? 1331 B.S. They contend that the howla of defendants 3 to 8 has been annulled by the sale of the putni taluq held under Regn. 8 of 1819. The suit was contested by one of the howladars, namely defendant 5. His defence was that there had been no annulment of the howla by the aforesaid putni sale and that on the other hand the plaintiffs elected after the auction-purchase to treat the howla as subsisting. On these pleadings the point that arose for determination at the trial was: Has the intermediate howla tenure of the proforma defendants been annulled? Are the plaintiffs entitled to recover rent from the tenants defendants?

(2.) The learned Munsif did not go into the question whether the howla was void by reason of the aforesaid putni sale or whether it was only voidable by reason of that sale. He apparently took the view that the howla was only voidable and he held upon the evidence that the plaintiffs had failed to prove that they had taken any steps to avoid it. In that view he held that the plaintiffs were not entitled to recover rent directly from the tenants-defendants and so he dismissed the suit. On appeal the learned Judge also did not go into the question whether the effect of the putni sale was to render the howla ipso facto void, but he took the view that the suit itself was sufficient evidence of the intention on the part of the auction-purchasers zamindars to annul the under-tenure, and he held that the under-tenure had been annulled on the basis of the present suit. In that view he allowed the appeal of the plaintiffs and decreed the suit as against defendants 1 and 2. Therefrom defendant 5 preferred a second appeal and it was heard by Patterson, J. The main question that was argued before Patterson, J., was whether the effect of the putni sale was to render the howla ipso facto void as from the date of the sale or whether the effect was only to render the howla voidable at the option of the action-purchasers. The learned Judge upon a consideration of the Case law on the points has held that the effect of the putni sale was to render the howla voidable; but not ipso facto void, and that having regard to the findings of the Courts below the howla was still subsisting, at any rate up to the date of the institution of the suit. As to the view taken by the lower appellate Court, namely, that the howla should be treated as having been annulled by the institution of the suit. Patterson J., held that such annulment could not possibly have retrospective effect as regards the liability of the tenants to pay rent to the zamindars for the period anterior to the suit.

(3.) In this Letters Patent appeal it is contended, first, that the view of law taken by Patterson, J., is not correct and that the effect of the putni sale was to render the howla ipso facto void and not merely voidable; and, secondly, that conceding that the effect was to render the howla only voidable it must be treated as annulled by reason of the institution of the suit as from the date of the putni sale. The effect of a sale of a putni taluk for arrears of rent held under Regn. 8 of 1819 is described in Section 2 of that Regulation. In this appeal the argument at the Bar has proceeded on the assumption that the howla in question is covered by Clause 2, Section 2 and the argument in support of the appeal is that the terms of Clause 2 bear out the contention that the legal effect of the putni sale is to make the under-tenure void without any further action on the part of the auction purchasers. In order to consider this argument properly it will be necessary to look to other parts of the Regulation. The preamble explains the intent of the Regulation and among other things it recites as follows: It has accordingly been deemed necessary to regulate and define the value of the property given and acquired on the creation of a putni taluq as above described; also to declare the legality of the practice of under-letting in the manner in which it has been exercised by patni-dars and others, establishing at the same time such provisions as have appeared calculated to protect the under-lessee from any collusion of his immediate superior with the zamindar, or other, for his ruin as well as to secure the just rights of the zamindar on the sale of any tenure under the stipulation of the original engagements entered into with him.