MAHADEB MANDAL Vs. RATAN MONDAL

JUDGEMENT

(1.) This appeal in which the plaintiff is the appellant arises out of a suit for declaration of title in and recovery of khas possession of, one half of a certain holding, upon the allegation that the plaintiff purchased the entire holding in a rent execution sale under the provisions of the Bengal Tenancy Act. The facts, in so far as they are admitted, are as follows. The lands comprised in the holding in dispute constituted an under raiyati jama of 3.42 acres with a right, of occupancy, held at a rental of Rs. 19-8-0(SIC) The landlords of this jama were Rama Nath, Sardar and others, and the jama was held by one Tarak Nath Biswas by virtue of a potta, granted to him. It would appear that at some time prior to the year 1903, the predecessors-in-interest of defendants 1 to 4 were given a subordinate tenancy under this jama In the year .1907, Tarak Nath brought a rent suit or suits against the predecessors of defendants 1 to 4, and from the records of that litigation, it appears that Tarak Nath had a cosharer, one Dhanapati, who was joined along with Tarak as a plaintiff in the suit or suits for recovery of rent from the predecessors of defendants 1 to 4. It may be stated here that no evidence has been given, in the present suit, of any conveyance either by Dhanapati or by his heirs of his or their interests to anybody else.

(2.) In the year 1936, the Sardar landlords of this holding instituted a suit for rent against the heirs of Tarak who are his sons and they obtained a decree in execution of which the present plaintiff purchased this holding. The sale was confirmed on 1 December 1938, and the plaintiff obtained symbolical possession on 9 April 1939. On 31 August 1939, the plaintiff caused notices under Section 167, Bengal Tenancy Act, to be served upon defendants 1 to 4. His case is that the interest of these defendants which is a tenancy under an under-raiyati, was an encumbrance within the meaning of the Act, and that it had been annulled by service of the notices just referred to. It may be stated here that the plaintiff succeeded in obtaining khas possession of half the lands covered by this interest of defendants 1 to 4. On 11th December 1939, the plaintiff instituted the present suit in respect of the other half. His case was that defendants 1 to 4 were in possession of the lands in suit, and that they, in collusion with the other defendants, were keeping him out of possession. The case for the defendants was that the plaintiff had acquired no title to the property, that the suit was not maintainable, and that it was barred by limitation. The defence further was that the sale in which the plaintiff had acquired the property was not a rent sale, as the decree obtained by the Sardars against the heirs of Tarak Biswas was no more than a money decree, the heirs of Dhanapati who had a subsisting interest in the tenancy not having been made parties to the suit. The learned trial Court granted the decree prayed for, but that decree has been reversed by the learned lower appellate Court which has held that the holding in dispute did not pass to the plaintiff in the execution sale by reason of the fact that, in the suit in which the Sardars obtained a decree for sale against the heirs of Tarak Biswas, the other cosharers in the tenancy, namely the heirs of Dhanapati had not been impleaded as parties.

(3.) On behalf of the appellant, three points have been taken. First, that the learned lower appellate Court was wrong in holding that Dhanapati's heirs were cosharers of Tarak's sons and necessary parties to the landlords suit for rent. Second, that even if Dhanapati's heirs were cosharers, the defendants in the rent suit represented the entire body of cosharer tenants by reason of the provisions of Section 146A, Bengal Tenancy Act, and that, therefore, the decree obtained against Tarak's heirs was a rent decree. Third, that the learned lower appellate Court has wrongly placed upon the plaintiff the onus of proving that Dhanapati's interest in the holding came to an end sometime after the year 1907. On behalf of the respondents, Mr. Sarkar has sought to uphold the decree of the lower appellate Court on two grounds which the lower appellate Court has negatived. These are, firstly, that the suit was incompetent because in it the plaintiff did not pray for the setting aside of an order passed against him in a previous proceeding under Order 21, Rule 58. Civil P.C., and, secondly, that the sub-tenancy of defendants 1 to 4 was a protected interest. I am satisfied that there is no substance in these two points, and they must be negatived for the reasons set out in the judgments of both the Courts below.