KHAGENDRA NATH CHATTERJEE Vs. SONATAN GUHA

JUDGEMENT

(1.) The facts connected with the litigation out of which these appeals arise, may be stated as follows.

(2.) The lands in dispute are included in a Permanent tenure called Taluk Kamdeb Guha appertaining to the zemindari mahal No. 2694 belonging to the plaintiff-appellant. The taluk was sold in execution of a rent decree and purchased by one Ganga Charan in 1864, who sold it to four persons, Ramsagar, Gokul, Krishnapriya and Chandrakala, who were members of the Guha family to whom the taluk belonged before the sale under the rent-decree. The first three mortgaged a 14-annas 4-gundas share of the taluk to certain persons who sued and obtained a decree upon the mortgage and one Chandra Kumar Bose ostensibly purchased the said share at the sale held in execution of the said decree, but it has been found that Chandra Kumar was the benamdar of the said mortgagors. The fourth purchaser from Ganga Charan, viz., Chandrakala, appears to have had a 1-anna 16-gundas share in the taluk, which on her death devolved on her three sons in equal shares, two of whom Ananda and Iswar mortgaged their 1-anna 4-gundas share to one Kashinath, whose successors-in-interest (who are described in these cases as the Chakravartis and the Kanjibalis) purchased the said share at a sale held on the 1st June 1888 in execution of a decree obtained upon the said mortgage. These Chakravartis and Kanjibalis deposited the landlord s fee as required by Section 12 of the Bengal Tenancy Act but it was not accepted by the plaintiff, as Iswar and Ananda whose interest they purchased or their mother had not got their names registered in the plaintiff s sherista. It appears that out of the four persons named above who purchased the taluk from Ganga Charan in 1864, only Ramsagar and Gokul got their names registered in the landlord s sherista and it was from them that the landlord used to realise rent for the tenure amicably or by suit. After the death of Ramsagar and Gokul, the landlord in 1889 brought a suit for rent against the four sons of Ramsagar and the widow of Gokul and the taluk having been sold in execution of the decree was purchased by one Chandra Kumar Chakravarti on the 17th March 1890. Then another decree was obtained for rent in 1890 for the period prior to the said sale. When execution of this decree was taken out, a mortgage (kistibandi) bond was executed by Chandra Kumar Chakravarti, Dinamani (widow of Gokul) and by three other persons who were members of the Guha family, viz., Rasik, Sonatan and Amar, in which it was stated that Chandra Kumar Chakravarti was the real owner of the taluk by purchase. From that time, the zemindar sued Chandra Kumar alone for rent, the last suit being No. 2767 of 1893. At the sale in execution of the decree passed in that suit, the taluk was purchased by one Manitara on the 29th April 1895. By this time, the zemindar suspected that Chandra Kumar and Manitara were benamdars for the Guhas, and in the next two rent suits Nos. 1572 of 1895 and No. 1574 of 1895, he joined the four sons of Ramsagar and the widow of Gokul (who were the defendants Nos. 4 to 8 in that suit), and Rasik, Sonatan and Amar who had joined Chandra Kumar in the kistibandi mortgage-bond and were made defendants Nos. 1 to 3, the 9th defendant in the 1st suit being the said Chandra Kumar and the 9th defendant in the second being Manitara. The defence of the first eight defendants in those two rent suits was that defendants Nos. 4 to 8 (the heirs of Ramsagar and Gokul) were the real owners of the taluk, that the defendants Nos. 1 to 3 had no interest therein and that the defendant No. 9 Chandra Kumar in the first suit and defendant No. 9 Manitara in the second, were the real auction-purchasers and decrees for rent should be passed against the said purchasers in each suit. The Court, however, found that Chandra Kumar and Manitara were benamdars, that defendants Nos. 1 to 3 had no interest in the taluk and that defendants Nos. 4 to 8 were the real owners of the taluk, and accordingly passed decrees against them. In execution of the decree in suit No. 152 of 1895, the taluk was sold and purchased by the zemindar decree-holder on the 20th June 1898 and he obtained delivery of possession through Court on the 29th July 1899. The judgment- debtors applied to have the sale set aside, but the application was dismissed and the order of dismissal upheld up to this Court. On the plaintiff attempting to take khas possession, the judgment-debtors set up several under-tenures and notices under Section 167 of the Bengal Tenancy Act were thereupon served upon them and the plaintiff instituted several suits for recovery of possession.

(3.) In three cases, it was found that the notices were not served within the time allowed by law and with respect to those three the plaintiff instituted three rent suits which gave rise to Second Appeals Nos. 3625 to 3627. In the other two cases, the notices were served in proper time and they were for possession of the lands in respect of which the defendants had set up under-tenures.