ABDUL RAJJAK SIKDUR Vs. PROMADA SUNDARI DEVI

JUDGEMENT

(1.) In the suit out of which this appeal arises plaintiffs claim rent from the defendants Nos. 1 to 4 for their 8 1/2 annas-share of a Nim Howla which is subordinate in the remaining 7 1/2 annas-share to a Nim Osat taluk belonging to the defendant No. 5 and in the said 8 1/2 as share to a pattan miras ijara held by the plaintiffs as darpattan miras ijara. The defendants Nos. 1 to 4 contested the suit alleging that the darpattan miras ijara was fictitious and fraudulent and there was no relationship of landlord and tenant as between the plaintiffs and themselves. The defendant No. 5 also challenged the bona fide character of the darpattan miras ijara, denied that the plaintiffs acquired any rights under it, and averred that he, having purchased the pattan miras ijara in execution of a decree for arrears of rent thereof, he has become the landlord of the defendants Nos. 1 to 4 to the extent of the 18 annas share.

(2.) The suit was dismissed by the Court of first instance, but on appeal the learned Subordinate Judge decreed the same in favour of the plaintiffs.

(3.) The learned Subordinate Judge held agreeing with the trial Court that the plaintiffs darpattan miras ijara was a fraudulent and fictitious tenancy created by the holder of the pattan miras ijara when the latter foresaw that her properties could not be saved as a large amount of arrears of rent had accrued therefor and the document was a benami one created to serve its a protection as against such consequences. He held further that the plaintiffs were assignees from the landlords of the defendants Nos. 1 to 4 and there was no contract between the plaintiffs and the said defendants and the latter were not inducted on the land by the plaintiff and therefore no estoppel arose on that ground. He, however, further observed as follows: "When Biseswar Ray Choudhuri (meaning the defendant No. 5) brought a rent suit against him (meaning the tenant defendants or their predecessor), he set up the present plaintiffs title and also produced rent receipts purporting to have been granted by them. It may be that he entered into this false defence at the instigation of the plaintiffs, but he went much further and produced dakhilas in support of his plea. It is the liability to pay rent which establishes the relation of landlord and tenant, but in the case of this defendant actual payment of rent was made and acknowledged. I think by this conduct this defendant did attorn to the plaintiffs and it is no longer competent to him to deny this title."