INDRA NARAIN MANNA Vs. SARBASOVA DASI

JUDGEMENT

(1.) These two groups of appeals arise out of rent suits brought by the plaintiff in respect of the 16 annas rent for 1326 and a portion of 1327 B.S. The defence of the tenants was that the plaintiff was not entitled to more than 8 annas share of the rent. In the first group of cases the Court of first instance dismissed the plaintiff's suit on the ground that she had not acquired a title in respect of 8 annas of the property, and with reference to the other 8 annas the claim was dismissed as the plaintiff failed to prove separate collection. On appeal by the plaintiff the learned Subordinate Judge decreed the plaintiff's suit for the entire 16 annas of the rent. The first group of appeals therefore are from the decrees of the lower Appellate Court by the tenant of defendants. In the second group of cases the Court of first instance (presided over by a different officer) decreed the plaintiff's suits in full and on appeal by the tenants the Subordinate Judge (who was a different officer) dismissed the plaintiff's suit on the ground that the plaintiff was not entitled to 8 annas share of the rent from the defendants and with regard to the remaining 8 annas, she failed to prove separate collection. The second group of appeals is by the plaintiff landlord; and as the two sets of appeals raise the same question they were heard together.

(2.) Before considering the points that arise in these cases it is necessary to give a brief history of the litigation. There was a putni under the Seal Zemindars-held by two brothers Aghore Dutt and Sarat Dutt. Aghore died in 1876 leaving a widow Binodini. In 1877 Binodini made a gift of 8 annas-share in the putni which she inherited to Sarat retaining some other properties for her own maintenance and use. In 1901 Sarat took a fresh pottah (for reasons not disclosed in the case) from 9 annas 12 gandas co-sharer landlord. In 1908 he took another pottah from 3 annas 4 gandas co-sharer landlord. There was no fresh settlement in respect of the remaining 3 annas 4 gandas. In execution of rent decree obtained by the co- sharer landlords the putni was sold and purchased by the plaintiff in July, 1919. The decrees were obtained against Sarat but before the property was brought to sale Sarat died in April, 1918. Binodini died in March, 1919. On these facts the tenants contend that the plaintiff did not acquire the whole interest in the putni inasmuch as on Binodini's death Aghore's share vested in his reversioners and the sales did not pass their interest.

(3.) In the first set of appeals the learned Subordinate Judge allowed the plaintiff's appeals and decreed the rent suits on two grounds; first, that the tenants should not be allowed in a rent suit to introduce complicated questions of title and thus convert a simple suit for rent into a title suit; and as the learned Judge was of opinion that the plaintiff's purchase created the relationship of landlord and tenant as between the plaintiff and the defendants the plaintiff's suits ought to be decreed without entering into the question whether or not she had acquired a right to the property. For this view he has relied upon the decision in the case of Lodai Mollah V/s. Kally Dass Roy (1881) 8 Cal. 238. As we understand this judgment in a way different from the way in which the learned Subordinate Judge has understood it, it is necessary to examine the effect of that decision. Field, J., in his learned judgment lays down the true scope of a suit for rent and the appropriate defences that may be raised by the tenants in such a suit. He mentions the different circumstances in which different defences may be taken, one of such circumstances being where the plaintiff sues for rent on a derivative title. To such a suit one of the defences as suggested by the learned Judge is that the defendant may deny the circumstances from which the plaintiff alleges that the tenancy is inferrible or has been created by implication; and to elucidate this point the learned Judge observes that there may be a denial of the facts which constitute the derivation or denial of the assignment. At page 244 of the report there is the following pertinent observation: "Where there has been no attornment" (as in the present case) "the plaintiff must prove his title as a condition precedent to establishing the relationship of landlord and tenant between himself and the defendant; and if there be none of the other defences already referred to, this may be the only point to be decided." Then the learned Judge proceeds to examine the English law on the point and comas to the conclusion that there is no authority for the procedure adopted by the Court, in the circumstances, of adding a third party to a rent suit for the purpose of determining the question of title raised. That case lays down the very sensible and salutary principle that in a rent suit where the defendant pleads justertii or right of a third party, the Court ought not to make such a third party a party in the suit and convert a suit for tent into a complicated title suit. The reasons given in support of this view are very cogent and need not be repeated here. It will be a misreading of the case if it is supposed to be an authority for the views that in no case can the tenant plead title in a third person in a rent suit and in no case can such a question be decided in a suit for rent. The learned Subordinate Judge presumes that by the plaintiffs purchase the relationship of landlord and tenant is established. We do not think that there is any authority for this presumption. If the only question in a suit for rent, as Field, J., observes in Ladai Mollah's case (1881) 8 Cal. 238, is whether there exists the relationship of landlord and tenant between the plaintiff and the defendant, in order to determine this question there must be an enquiry into the plaintiff's title when it is derivative. To hold that such a relationship is established merely because the plaintiff alleges that he derives his title from a person to whom the tenants had attorned is to beg the whole question. The case of Ladai Mollah (1881) 8 Cal. 238 was considered and explained in the case of Rahimannessa Bibi V/s. Mahadeb Das Mal (1910) 12 C.L.J. 428. Mookerjee, J., says as follows: "We may also observe that as explained by this Court in the case of Ladai Mollah V/s. Kally Das Ray (1881) 8 Cal. 238 the plaintiff cannot possibly maintain the position that the defendant is not entitled to question his title. As was pointed out by the learned Judges in the case last mentioned even where the plaintiff claims by a derivative title and the defendant has attorned to him, the defendant is not thereby estopped from showing that the title is really not in the plaintiff but in some other person." That case is direct authority for the view we take and it must be understood that Ladai Molla's case (1881) 8 Cal. 238 not only lays down that in a suit for rent a third party set up by the tenants should not be dragged to convert it into a title suit but it also holds that the question with regard to the plaintiff's right cannot only be raised but must be; raised where it is denied by the tenant. This ground therefore on which the learned Judge bases his judgment fails.