AMULAY KRISHNA GHOSH Vs. PUTUMANI DEBI

JUDGEMENT

(1.) This is an appeal by the second defendant in an action by the reversioners for possession of certain properties which were described as Schedules III and IV. I propose to describe these properties under their Schedule numbers, that is to say, Schedules III and IV.

(2.) As regards the Schedule III lands, the widow on the death her husband being in possession, it appears, had fallen into arrear for rent to the superior landlord, and one Ganganarain Tewari, who was alleged to have purchased the interest of one Hitlal, thus became a co-sharer with the widow, and he Ganganarain Tewari, having paid the entire rent to the landlord brought an action for contribution against the widow and Radha Sukul her son-in-law in the Small Cause Court, obtained a decree and the property in execution of that decree was sold. It was purchased by the vendor of defendant No. 2 and then, as I have indicated, sold to defendant No. 2.

(3.) The argument, when the appeal was opened, proceeded on the footing of the Chota Nagpur Tenancy Act, but the sale took place prior to the coming into force of that Act and therefore has no application to the matter. Section 60 was quoted as showing a difference between that and Section 65 of the Bengal Tenancy Act. Under Section 65 of the Bengal Tenancy Act at least there is a doubt whether it is the rent itself or the decree obtained for rent which is a first charge on the property. But it was argued that under Section 60 of the Chota Nagpur Tenancy Act any doubt on that point disappears. But, as I have said, the sale took place prior to the Act of 1908 and therefore there would be no question of the decree being a first charge, or the rent which was the subject-matter of the decree, being a first charge on the holding. Indeed in any event I should have to hold in this case that as the suit was a suit for contribution it could not have the force and effect of a rent decree. The decision in Ganesh Lal Pandit V/s. Khetramohan Mahapatra 95 Ind. Cas. 839 : 5 Pat. 585 at p. 594 : 53 I A 134 : A I R 1926 P O 56 : 24 A L J 615 : 430 L J 545 : 28 Bom. L R 931 : 24 L W 50 : 51 M L J 82 : 7 P L T 501 : (1926) M W N 535 : 3 O W N 591 : 31 C W N 25 (P O). in no way assists the appellant on this question. In my opinion that case was made to depend upon whether this was a charge upon the land or not. It seems tome quite clearly that it was not. Therefore the appellant fails on this point.