JADUPATI SAHAY Vs. LAL CHAND RAM

JUDGEMENT

(1.) This is a Letters Patent appeal from the decision of Sinha J., in a second appeal arising out of a suit which has been decreed in favour of the plaintiffs. The facts of the case as set out in the plaint are somewhat complicated, but for the purpose of this appeal they may be summarised as follows : The plaintiffs are purchasers in execution of their mortgage decree of a number of plots situated in mauza Phulwaria including plots Nos. 2356 to 2360 which had been mortgaged to them by two persons Mosaheb and Jhari Lal who had purchased them from the recorded tenants. On 23 September 1933 the defendants first party who are the cosharer landlords of the mauza brought a suit for recovery of arrears of rent against Mosaheb and the widow of Jhari Lal and obtained an ex parte decree against them on 13 January 1938. In execution of this decree one of the plots No. 2356 was sold and purchased by defendants third party. The plaintiffs thereupon brought the present suit in which they claimed a number of reliefs including a declaration that the decree in execution of which plot No. 2356 was sold, was not a proper rent decree but a money" decree and that the sale which took place in execution of that decree did not affect the plaintiffs interest as purchasers of the same plot in execution of their mortgage decree.

(2.) It appears that a number of grounds were put forward on behalf of the plaintiffs in the first two Courts as well as in the second appeal in support of their contention that the decree in question had the effect of a money decree. The learned Judge who heard the second appeal has, however, overruled all those grounds except one. In this appeal which has been preferred on behalf of the defendants first and third party, it is contended that the view of the learned Judge is not correct, that the decree should be held to be a money decree with the result that the sale which took place in execution of that decree merely passed the right, title and interest of the judgment-debtor. In order to decide the point in controversy a reference to the facts upon which it is based is necessary. It is common ground that the defendants first party is a cosharer landlord in mauza Phulwaria tauzi No. 804 and his interest is 14 annas odd. The remaining interest in the mauza formerly belonged to one Juthi Rai until the end of the year 1348 Fasli, but in 1936 Juthi Rai sold his interest to one Sitaram Singh. In the rent suit with which we are concerned the defendants first party claimed 16's annas rent for 1341 and 1342 but for the years 1343 and 1844 they claimed only rent in proportion to their 14 annas odd interest. In that suit Juthi Rai was not a defendant but Sitaram was a defendant. On these facts the Munsif who tried the suit held that the decree had not the effect of a rent decree but it was a money decree with the result that only the right, title and interest of the judgment-debtor passed by the sale held in execution thereof. The learned Subordinate Judge who had to deal with the appeal from the Munsif's judgment came to the opposite conclusion and held that the decree was a rent decree inasmuch as Sitaram who was the only other landlord besides the defendants first party at the time of the institution of the suit had been impleaded as a pro forma defendant. Sinha J. in second appeal disagreed with this view and held agreeing with the Munsif that the decree was a money decree. His reasons for arriving at this conclusion are clearly set out in the following passage which I quote from his judgment: The fourth contention raised on behalf of the appellants, in my opinion, is a more substantial one, namely, that the plaintiffs claimed rent for the entire sixteen annas for the years 1341 and 1342 fasli, though the plaintiffs were interested only to the extent of fourteen annas odd as proprietors. If they intended to obtain a rent decree , they should not have claimed the entire rent, but should have confined their claim to their admitted fourteen annas odd share. Hence if they laid a claim in the plaint to the entire sixteen annas rent for these two years, they incurred the risk of getting only a money decree for several reasons. Firstly if the claim was made also on behalf of the absent proprietor, namely, Juthi Rai, who had ceased to be the proprietor at the date of the suit, any claim on his behalf would be only a money claim, and not a claim for rent. Secondly even if the plaintiffs can be said to have sued for the entire rent as the assignees of Juthi Rai, the claim would not be on a higher footing, as Juthi Rai had ceased to be the proprietor by virtue of his transfer in favour of Sitaram. Hence, in my view, the plaint as laid in Court, which resulted in the decree for rent and the sale thereunder, could not be treated partly as a claim for rent and partly as a claim for money. It could either be the one or the other: it could not be both. The Courts are always circumspect in this matter, that is to say, the Courts havef to scrutinise very carefully any claim based on the contention that the decree was a "rent decree" and not a mere money decree inasmuch as the former has the sweeping effect of wiping out the interest of persons who are not parties to the rent suit or to the execution proceedings...,. Hence the result of including something in the claim which could not be decreed as for rent, but something as a mere money claim, is that the decree so obtained is relegated to the position of a mere money decree: see in this connection the decision of the Judicial Committee of the Privy Council in Jitendra Nath Ghosh V/s. Manmohan Ghosh . It must therefore be held that the decree obtained in the rent suit in question had the effect only of a money decree, and, consequently, the purchase made by the defendants first party had not the effect of wiping out the mortgage sale in favour of the plaintiff- appellant.

(3.) Mr. Mukherjee, who has argued this case with his usual ability contends that the mere fact that a person who has ceased to be a landlord was not impleaded in the suit or that the claim of the defendants first party in the rent suit was somewhat in excess of their right will not make the decree in question a money decree. According to him there is a material distinction between matters which are relevant to the merit of the claim in a suit for rent and those which are relevant to the constitution of the suit and if the suit has been properly constituted by impleading all those who were landlords at the date of its institution, it will result in a rent decree even though the actual claim made by the plaintiff be wrong or excessive. In support of this contention Mr. Mukherjee has cited three cases two of which are: 1 pat. L. W. 3422 and 2 Pat. L. J. 194 These cases have been commented on by Sinha J. in these words: Counsel for the respondents has relied upon the two decisions of this Court in Ram Kishun Jha V/s. Mahabir Rai A. I. R. 1917 Pat. 640 and Sarup Sahu V/s. Jagarnath Modi A. I. R. 1917 Pat. 493, both decisions of Chapman and Boe JJ. who have laid it down that a decree for sums due for rent during a period for the latter part of which the plaintiff upon the record comprised the entire body of landlords and for the former part did not comprise the whole body of landlords is a decree for rent within the meaning of Section 158B, Bengal Tenancy Act. They further laid down that all that is required under that section is that at the time of the making of the decree the whole body of landlords must be on the record. If the matter were res Integra so far as our own Court is concerned, I would have been inclined to hold that such a decree would not have the effect of a "rent decree" for the simple reason that as in the present case the claim for the first two years of the rent had not been made by or on behalf of the sixteen annas proprietors, and, certainly, so far as the first two years of the claim are concerned, the decree could not be said to have been obtained by the entire body of landlord. But I am bound to follow the two Division Bench rulings of this Court and in that view of the matter I would overrule the contention raised on behalf of the appellants.