UDAY CHAND MAHATAB Vs. KURORAM MUKHERJEE

JUDGEMENT

(1.) This is an appeal on behalf of the landlord decree-holder and is directed against an order made by the District Judge, Birbhum, affirming an order of the Subordinate Judge of that place allowing certain objections of the judgment-debtors respondents under Section 168A, Ben. Ten. Act. The material facts are not in controversy and may be shortly stated as follows: The decree-holder appellant instituted a rent suit against the respondents on 15 April 1937, being Bent Suit No. 2 of 1937 for recovery of arrears of rent due in respect of a putni tenure for the years 1340 to 1342 B.S. The decree was obtained on 14 December 1937, and an attempt was made to execute the decree in 1938, but after proceeding to some extent, the application for execution was struck off. The putni itself was sold on 15 May 1938 for arrears of putni rent for the year 1344 B.S. under the Putni Regulations, and it was purchased by the landlord himself. The present execution was started on 2 December, 1940, and in the course of the execution proceedings, the landlord attached certain immovable properties belonging to the judgment-debtor other than the tenure in arrears which was already purchased by the decree-holder at the putni sale. The properties were under attachment at the time when Section 168A was introduced into the Bengal Tenancy Act. The judgment-debtors preferred an objection under Sub-section (2) of that section. The Courts below have held that the decree- holder is not competent to proceed against any other property of the judgment-debtors, and his case is not covered by the proviso to sub-clause (a) inasmuch as the expression term of the tenancy as used in the proviso contemplates only a tenancy having a limited term. It is against this decision that the present second appeal has been preferred.

(2.) It seems to us that the Courts below were wrong in the view they took of the proviso to Sub-clause (a) of Section 168A, Ben. Ten. Act. The meaning of the expression term of the tenancy as used in the proviso has been considered by this Court on more occasions than one; and it has been held that the expression does not indicate that the tenancy is for a limited period. In the case before us, the tenancy was put up to sale under the provisions of Regn. 8 of 1819 and it was purchased by the landlord. The landlord is certainly entitled to say that the tenancy has expired in a manner other than by surrender as contemplated by the proviso mentioned above inasmuch as a case of merger would arise as soon as the putni interest merged in the superior interest of the zamindar. This question of merger was not specifically raised or decided in any of the Courts below, and we think that this matter requires investigation. Of course, if Section 111, Clause (d), T.P. Act, applies, there will be a merger automatically as soon as the two interests are vested in one and the same person in the same right. Otherwise, it may be a question of intention. We do not express any opinion on this point. This appeal is allowed. The order of the lower appellate Court is set aside and the case is sent back to the lower appellate Court in order that it may be decided whether by purchase of the putni sale held under Regn. 8 of 1819 the putni interest merged in the superior interest of the zamindar. If there is merger the landlord will be certainly entitled to avail himself of the proviso, and Section 168A, Ben. Ten. Act, will not stand in the way of, his proceeding against other properties of the judgment-debtors. If there is no merger the judgment-debtor's objections will be allowed. The costs will abide the result. Hearing fee in this Court 2 gold mohurs. Blank, J.

(3.) I agree.