RANAPATI CHATTOPADHYA Vs. ARABINDA KUMAR PAL

JUDGEMENT

(1.) This is an appeal by two of the defendants in a suit for recovery of arrears of rent in respect of a putni taluk. The suit was brought on 19 April 1938, by one Arabinda Kumar Pal for his 8 annaa share of the rent, Satyendra Nath Pal, the owner of the other 8 annas share, being made a party-defendant as required by Section 148A(1), Ben. Ten. Act. The annual rent of the entire a putni was stated to be Rs. 11,603 and the annual cess Rs. 3514-5-0. The suit was for arrears of four years, 1341 to 1344 B.S. inclusive, and the plaintiff laid the total claim in his 8 annas share at Rs. 33,881 odd, after giving credit for certain payments and adding damages at 25 per cent, of the arrears. On 6 June 1938, Shyamrangini Roy Chowdhurani and Pulin Krishna Roy, who on 27 April 1938, had purchased the 8 annas share of Satyendra Nath Pal at a sale in execution of a mortgage decree, applied to the Court to be substituted in his place. The application was rejected on 8 June 1988, on the ground that the mortgage sale had not yet been confirmed. Immediately there, after, on 8 June 1938 itself, Satyendra Nath Pal applied to be joined as a co-plaintiff for his share of the rent, presumably under Section 148A(3), Ben. Ten. Act. This application was allowed and he was added as a co- plaintiff on 21 June 1938. On 18 July 1938 the mortgage sale in favour of Shyamrangini Roy Chowdhurani and Pulin Krishna Roy was confirmed, and they applied again on 25 July 1938, for substitution in place of Satyendra Nath Pal. This time their prayer was allowed and they were accordingly substituted as co-plaintiffs in his place on 30 July 1938.

(2.) The suit was contested by defendants 1 to 3, of whom defendants 2 and 3 filed the present appeal, defendant 1 being their brother. Defendant 3 died after the filing of the appeal and his son is now continuing it. Five issues were raised at the trial, namely, (i) What is the yearly rent? (ii) Have the co-plaintiffs any right to realise arrears of rent on the strength of their sale certificate? (iii) Are the defendants entitled to claim abatement of rent on the ground of Diara and diluvion? If so, what amount? (iv) Is the plea of payment alleged by the defendant true? (v) What amount, if any, are the plaintiff and the co-plaintiffs entitled to claim on account of damages? The Subordinate Judge found against the defendants on all points and decreed the suit in full. Hence this appeal. We may mention at the outset that the appellants no longer question the rate of rent. The Court below has found that the annual rent of the whole of the Putni taluk is, as claimed in the plaint, Rs. 11,603. This is now conceded.

(3.) The first point raised before us on behalf of the appellants is as to the construction of the sale certificate, Ex. 2 upon which the co-plaintiffs Shyainrangini Roy Chowdhurani and Pulin Krishna Roy base their claim. This document certifies that on 27 April 1938, they purchased at a sale in execution of a certain mortgage decree an eight annas share of the zemindary bearing touzi No. 184 of the Rangpur Collectorate and touzi No. 712 of the Bogra Colleetorate, including all mouzas, Kismats, etc., "together with all arrears of rents, royalties and cesses owing and payable by raiyats, tenants, tenure-holders and occupiers." The dispute is as to the meaning of the words which we have underlined (here italicized). Do they refer to the arrears which were due at the date of the mortgage deed, that is to say, on 5 July 1927, or do they refer to the arrears which were due at the date of the sale? It is contended for the appellants that the former is the correct construction, and that the co-plaintiffs are, therefore, not entitled to the arrears of 1341 to 1344 B.S. (1934-35, 1935-36, 1936-37 and 1937-38). Giving the words their natural meaning, however, we have no doubt that they must refer to the arrears which were due at the date of the sale. The arrears that were due in July 1927 were of no value and could be of no concern to a purchaser in April 1938, and it would be an unnatural and unwarrantable construction of the words to hold that they refer to those arrears. Any doubt on this point is removed by the note at the end of the sale proceedings, Ex. 9 in which the Registrar who held the sale records the fact that when he was fixing a reserve price for the lot to be sold the mortgagor claimed that the property was worth Rs. 150,000 and that there were arrears of rent amounting to Rs. 50,000. This could only refer to the arrears due at the date of the sale. If the contention is that the sale of these arrears was not justified by the mortgage decree, the point might and ought to have been taken by the mortgagor in the execution proceedings in the mortgage suit. It cannot be raised by the appellants in the present suit. It follows from our construction of the sale certificate that the co-plaintiffs Shyamrangini and Pullin are entitled to Satyendra's eight annas share of putni rents which were in arrears at the date of the sale. This would include the rents concerned in the present suit.