HARENDRA NATH CHAUDHURY Vs. DWIJENDRA NATH BANERJI

JUDGEMENT

(1.) This is an appeal by defendant 2 (one of the several cosharer-landlords of a tenancy), in a suit under Section 106, Ben. Ten. Act, instituted by the tenants plaintiffs, for correction of entries in the finally published Record of Rights. The Assistant Settlement Officer who tried the suit directed the correction of entries as mentioned in his judgment; and the decision of the Assistant Settlement Officer was affirmed by the learned Special Judge of the 24-Parganas, on appeal. The appeal before the Special Judge preferred by the appellant in this Court was dismissed on the ground that it was time-barred in respect of respondent 7, and that rent could not be altered in the absence of some of the cosharer landlords. The learned Judge in the Court below has held that the appeal before him had abated so far as respondent 7, one of the cosharer landlords, was concerned owing to the non-substitution of the heirs of that respondent within the time allowed by law.

(2.) Respondent 7 was made a party to the appeal before the Court below; it has however been contended before us that the said respondent was not a necessary party to the appeal, and that in view of the provisions contained in Order 41, Rule 4 and Rule 33, Civil P. C, relief could be granted to all the defendants in the suit on an appeal preferred by one only of the defendants, and that the non-substitution of the heirs of one of the defendants-respondents in time was therefore wholly immaterial. The proposition sought to be substantiated, so far as its applicability to proceedings under Section 106, Ben. Ten. Act, is concerned, is against the authority of decisions of this Court of which the decision in the case of Naimuddin Biswas v. Maniruddin Laskar , is typical. As has been held in Naimuddin Biswas case , with the principle followed in which, we are in entire agreement, Order 41, Rule 4, Civil P.C., has no possible application to a case like the present, where the tenants by a suit under Section 106, Ben. Ton. Act, prayed for correction of entries in the Record of Rights which the landlords, defendants in the suit, wanted to maintain; and the provisions contained in the Code of Civil Procedure gave no power to the Court to vary or reverse a decree in favour of a person who was dead, and whose legal representatives had not been brought on the record. Furthermore, it could not be denied that in view of the nature of the relief sought in the suit under Section 106, Ben. Ten. Act, the entire body of landlords against whom relief was sought were necessary parties to the suit, and to an appeal arising out of the suit; and after the partial abatement of the appeal, the appeal could no longer be hold to be competent. In that view of the matter, the provisions contained in Order 41, Rule 33, Civil P.C., could not be invoked in aid of one of the defendants-appellants. it is hardly necessary to point out the difficulty and anomaly that might arise from allowing an appeal arising out of proceedings for correction of entries in a finally published Record of Rights in which the entire body of landlords and tenants were not represented. In our judgment therefore the dismissal of the appeal by the Court below was fully justified, and we see no reason to interfere with the decision arrived at by that Court.

(3.) It may be mentioned that on the findings arrived at by the learned Special Judge in the case before us, regard being had to the materials placed before the Court, which, on the face of the judgments of the Courts below go to support the case for the tenants, by whom the suit under the section of the Bengal Tenancy Act was instituted, and regard being also had to the very inconclusive nature of the decision arrived at by the learned Special Judge in his judgment, we are inclined to hold that no case was made out before the Court of appeal below for an interference with the decision arrived at by the primary Court on the merits of the case. On the facts stated in the judgment of the learned Special Judge, we are in a position to express the opinion that the decision of the Assistant Settlement Officer in favour of the tenants, plaintiffs in the suit, was correct.