BRINDABUN CHUNDER SIRCAR CHOWDHRY AND SRISH CHUNDER SIRCAR CHOWDHRY Vs. BRINDABUN CHUNDER DEY CHOWDHRY

JUDGEMENT

(1.) THIS is a suit for possession and mesne profits of a durputnee mehal brought against the zemindar. The charge is that the zemindar in collusion with the heirs of Rutnessur Boy, who was said to be merely a benamee holder of the putnee talook, obtained a decree against them for Rs. 5,156 as arrears of rent of the said putnee, and that under that decree he sold the putnee, and having purchased it in his own name entered upon the estate of the durputneedar, treating the durputnee as having ceased to exist upon the sale of the putnee.

(2.) WITH regard to the fraud their Lordships are of opinion that there is no sufficient evidence to satisfy a Court of justice that there was any fraud or collusion between the zemindar and the heirs of Butnessur, to allow the zemindar to obtain a decree against Butnessur for arrears of rent which were not actually due. A strong fact against the supposition of fraud was this, that the zemindar originally sued the durputneedars for these arrears of rent. The durputneedars in that suit set up as a defence that Butnessur was the putneedar and that they were merely the durputneedars of the mouzah, hence they said, the Plaintiffs' claim can be made against Butnessur and his heirs, and not against us. Now if the durputneedars at that time thought that the action ought to have been brought against the Maharajah of Kishnaghur, for whom, they said Butnessur held the estate benamee, why did they not say so in their defence? They said, Butnessur is the person liable for these arrears and you must sue him. Upon that the case went to trial in the Collector's Court; and the Judge who tried the case held that Butnessur was the putneedar, and therefore that the Plaintiffs could not sue the durputneedars, and he dismissed the suit with costs, whereupon the zemindar brought an action against the heirs of Butnessur for the arrears of rent, and it is that suit which is now charged as having been brought by collusion between the zemindar and Butnessur for the purpose of injuring the durputneedars by fraudulently obtaining a decree for rent which was not due, and then selling the putnee and avoiding the incumbrance of the durputnee.

(3.) THE Plaintiff in his plaint describes the tenure as a putnee talook, and his own tenure as a durputnee, and the point is, whether, under the description of " putnee and durputnee," it is to be presumed that the putnee tenure was one such as is described as the tenure denominated a putnee by Regulation VIII. of 1819. In the preamble of that regulation--which, as contended for by the learned Counsel, it must be admitted is not an enactment but merely a recital, it is said, " By the terms of the engagements interchanged it is, amongst other stipulations, provided, that in case of an arrear occurring, the tenure may be brought to sale by the zemindar, and if the sale do not yield a sufficient amount to make good the balance of rent at the time due, the remaining property of the defaulter shall be answerable for the demand. These tenures have usually been denominated putnee talooks."