SRI SRI RAJ RAJESWAR THAKUR REPRESANTED BY MANAGING SHEBAIT AND NEXT FRIEND NRISHINHA CHARAN NANDI CHOUDHURI Vs. LAKSHMI KANTA PRAMANIK

JUDGEMENT

(1.) THIS Rule has been issued in connexion with a proceeding under Section 88, Ben. Ten. Act. I have already dealt with the question common to this and the connected rules in my previous judgment delivered in Civil Revn. Case No. 1294 of 1942. There is, however, one special point in the present case which requires consideration. The original rent was Rs. 12-15-11 gandas. The case of the principal opposite parties (NOS. 1 to 5) was that the share due from them would amount to Rs. 12-1-0. If this division is correct, the balance due from the pro forma opposite parties 6 to 8 would be 14 annas 11 gandas. Mr. Lahiri's contention is that this offends against proviso (b) to Sub-section (2). The Munsif made an Order in favour of opposite parties 1 to 5 in the terms of their prayer. He did not make any Order with regard to pro forma opposite parties 6 to 8. The petitioner could, therefore, only succeed in revision by showing that it follows by necessary implication that the separate liability for the rent of opposite parties 6 to 8 is reduced to 14 annas 11 gandas. The question involves the consideration of proviso (c) which is in these terms: Nothing contained in this Sub-section shall be deemed to authorise a Court on an application for division or distribution to direct a division or distribution in respect of the share of any tenant other than an applicant under this Sub-section or a co- sharer tenant who has been joined as a co-applicant Under Sub-section (3).

(2.) MR. Lahiri argued that this merely means that the question will not be res judicata so far as a tenant within the terms of the proviso is concerned. In my judgment it is impossible to reconcile any such interpretation with the language actually used. The proviso does not lay down that a tenant who does not join in the application will not be debarred from re-agitating the matter in some subsequent proceeding. It goes much farther than that. It prohibits a Court from making an Order at all with respect to the share of such a tenant. Difficult question will certainly arise with regard to the legal effect of orders such as that made in the present case. But their solution is beyond the scope of the present rule. Nor is it possible to ascertain the reasons which led to the insertion of this proviso. It may, however, be that the Legislature thought it undesirable that the parties should be compelled to fight out in a summary proceeding a dispute which ultimately raises a question of title. The result is that the Munsif is prohibited by proviso (c) from making any Order for distribution with respect to the shares of opposite parties 6 to 8. Hence the Order which he has actually made does not contravene the provisions of proviso (b). The Rule is discharged. I make no Order as to costs.