SMT MADHABILATA DEBI Vs. BUTTO KRISTO ROY

JUDGEMENT

(1.) This is an appeal by the plaintiff who is dissatisfied with that portion of the decision of the learned Subordinate Judge by which he refused to grant her a decree for arrears of rent and royalty against defendant 22. The principal question for determination is the liability of this defendant if he is an assignee of the interest of the lessee.

(2.) The facts are these. In the year 1900, the Raja of Jharia now represented by defendant 24, granted a lease of coal land some 39 bighas on certain terms of payment of commission and royalty in village Fularibad to the ancestors of defendants 25 and 27, and in the year 1908, another 25 bighas was settled on certain terms with defendant 80. In the year 1914, 2i bighas was also settled with defendants 26 and 32. These defendants also took settlement of surface lands about 51 bighas. These lessees and one Ambika Charan Laik, who is the predecessor-in-interest of the Laik defendants--defendants 1 to 6 and 10 to 25-- began to work the colliery under the style and name of Fularibad Colliery. By certain transfers, when, it is unnecessary to state here, several defendants transferred their interest to; defendant 23, Ramjash Agarwalla. The terms of the original lease were varied as the result of a compromise in a suit instituted by the- predecessor of defendant 24 in the year 1918. Before this in the preceding year Makund Lai Laik, son of Ambika Charan Laik, then deceased, executed a deed of trust with respect to a number of properties. Item 45 in the schedule attached to the deed of trust shows that he included in the trust his three annas, equal to 7 bighas, more or less in 39 bighas of coal land which, as I have stated above, was taken in settlement in the year 1900 from the Raja. In or about 1925 one Butta Krishna Roy and his cosharers obtained a money decree against Jugal Kishori Dovi, the widow of Ambika Charan Laik, and his co-lessee Sastikinkar Banerji, with regard to the arrears of rent and royalty which fell due on some other coal land situated in village Pandedih. In execution of that decree the rights of Jugal Kishori Devi were sold in 66 bighas and 11 kathas of land in village Fularibad and a sale certificate was granted on 28 July 192& to the auction- purchaser which is Ex. A at p. 43, the question of construction of this sale certificate is a serious question between the parties. It will be noticed that this 66 bighas and 11 kathas is made up of the three areas which were settled by the Raja in 1900, 1908 and 1914. Defendant 22 is Butta Krishna Roy, the auction- purchaser under this document.

(3.) On 22 August, 1937, defendant 24 by a registered sale deed sold the arrears of rent, royalty and commission which were due to him from the Aswin kist of 1336 B.S. to chaitra kist of 1343 B.S. for this 66 bighas and 11 kathas of land as well as the surface rent to the plaintiffs. The plaintiffs instituted the suit giving rise to this appeal on 13 January 1939 and asked for a personal decree against a number of defendants including defendant 22 who was made a party defendant as an assignee of the interest of defendant 4 which is given in the plaint as Mukunda Madhu-sudan Sampat Trust Estate. Defendants 5 and 6 are the daughters of Makunda Lai Laik. At the trial defendant 22 took the plea that the plaintiffs are the benamidars of defendants 25 to 28 and 30 to 33; but this question was decided in favour of the plaintiffs and no challenge is made to this finding. The learned Subordinate Judge decreed the suit against all the defendants ex parte but on contest against defendant 23 whose defence also was that there was no privity of contract or of estate between him and the plaintiffs. The suit was dismissed against defendant 22 because the learned Subordinate Judge held that all that Butto Krishna Roy purchased under the sale certificate was merely the rights of Jugal Kishori Devi to receive the minimum royalty etc. in respect of the coal land from Fularibad Colliery and Ramjash Agarwala, and, therefore, he was not an assignee of the interest of the trust estate, that is to say, not an assignee of the lease hold interest.