HARI PADA DUTTA Vs. GOBINDA CHANDRA DAS

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and arises out of a suit for recovery of produce rent for the years 1333-1335 B.S. The plaintiff claimed at the rate of 5 maps of paddy and 8 pans of straw per year. It appears that the lands in suit belonged to two persons Gosai Das and Hriday Nath Das in equal shares. In execution of a money decree against them the Ratis purchased their interest but this purchase was after Hriday Nath had executed a mortgage in respect of his half share in favour of the plaintiff. The plaintiff sued upon his mortgage, got a decree and in execution of the same purchased the mortgagor's shares. He took possession through Court on 5 October 1923. The case has proceeded on the footing that the plaintiff has got 8 annas share to the lands in suit, the other 8 annas being with the Ratis. It appears that some persons called the Lohars were in possession at least from the year 1910 of the lands in suit as tenants under the Ratis. In the year 1926, the plaintiff instituted a suit for rent being Rent Suit No. 72 of 1926 against the Lohars for his half share of the rent for the year 1330 B.S. This suit was instituted in 1333 B.S. It appears that the plaintiff instituted the said suit on the footing that the Lohars were his tenants in the year 1330 but from the year 1331 he, the plaintiff, had brought on another tenant on the land whose name is Narayan. In this suit a compromise petition was filed between the plaintiff and the Lohars. The said petition is Ex. D in this case. The parties agreed that for the year 1330 the Lohars were to pay to the plaintiff the value of 5 1/2 maps of paddy and 2 pans of straw, the price to be determined by the Court. There is a stipulation that from the year 1333 the Lohars were to pay to the plaintiff a reduced rent at the rate of 4 maps of paddy and 8 pans of straw.

(2.) The compromise petition was filed on 19 August 1928. Two days later namely on 21st August 1926, the Court determined the price of paddy, and passed a decree in favour of the plaintiff. Six days before the petition of compromise was put in, that is to say on 13 August 1926, defendant 1 executed a Kabuliat in favour of the plaintiff by which he agreed to pay to the plaintiff the rent claimed in the suit. That Kabuliat was accepted and the case of defendant 1 that he was prevailed upon to execute that Kabuliat through misrepresentation has failed in the lower Courts. It is on the basis of this Kabuliat that the plaintiff has instituted the suit and claims rent against defendant 1. There is a stipulation in the Kabuliat which would imply that at the date thereof the plaintiff was not in khas possession but the lands were in possession of Narayan. In the Kabuliat there is a statement that the plaintiff had realised the Bhag rent from Narayan for the years 1331-1332, the defendant was to realise from Narayan Bhag rent for the year 1333 and thereafter defendant 1 took upon himself to eject Narayan from the land and cultivate the land in khas. It appears that Narayan referred to this Kabuliat later on, set up the case that he was not the Bhag chasi of the plaintiff but of the Lohars with the result that defendant 1 had to institute a suit against the Lohars for recovery of possession. In that suit also he failed. That suit was filed on the basis of the settlement evidenced by the Kabuliat Ex. 1. The suit was dismissed on a preliminary point.

(3.) There was an appeal to the High Court by which the decree of the lower Court was set aside and the case remanded to the lower Court. During the pendency of this suit in the lower Court after remand the interest of the Lohars was purchased by defendant 2 who is the wife of defendant 1. The case of defendant 1 is that it was under the advice of the plaintiff that this conveyance was made. Defendant 1 has resisted the claim for rent against him on two grounds. Firstly, he says that at the date of Ex. 1, the plaintiff had no right to settle the lands with him, he having recognized the pre-existing tenancy in favour of the Lohars. Secondly, he says that inasmuch as the plaintiff did not put him in possession, there was liability to pay. Defendant 2 filed a written statement, admitted the tenancy under the plaintiff in her right as a purchaser from the Lohars and admitted her liability to pay rent at the rate of 4 maps of paddy and 8 pans of straw a year. The learned Subordinate Judge has dismissed the plaintiff's suit in its entirety. He has held that the Solenama Ex. D clearly recognized a preexisting tenancy in the Lohars. At the time of the Kabuliat Ex. 1 the plaintiff had already the Lohars as tenants. It also found that defendant 1 could not take possession and the possession which defendant 2 took after her purchase from the Lohars, was a possession taken on her own behalf, she not being a Benamidar of her husband. In this view of the matter, it has dismissed the suit against defendant 1. The suit has been dismissed against defendant 2 inspite of her admission on the ground that the plaintiff has not claimed, any relief against her in the suit.