DURLAV CHANDRA CHOWDHURI Vs. JAMIRUDDIN AHAMED CHOWDHURI

JUDGEMENT

(1.) This appeal by the darpatnidars raises important questions relating to the rights of the zamindar as against the darpatnidar. The predecessor of the plaintiff-respondent granted a patni settlement to one Lakshmi Narain in 1293 B.S. in respect of three mouzas. The rent reserved was Rs. 256 a year. Of two of these mouzas Lakshmi Narain granted in 1303 to one Masraf Ali, now represented by Defendant No. 9, a darpatni lease on a yearly rent of Rs. 228. Lakshmi Narain died leaving four sons, Defendants Nos. 10 to 13. In 1321 defendants Nos. 12 and 13 executed a darpatni lease in favour of one Madan Mohan of their share in the third mouza on a yearly rent of Rs. 20. In 1322 the other two sons of Lakshmi, the Defendants Nos. 10 and 11, granted a darpatni lease in respect of their shares in the third mouza, Mahabasi to their own sons Defendants Nos. 1 and 2, for a yearly rent of Rs. 20. Plaintiff's case is that his predecessor had obtained a decree against the patnidar for arrears of rent in execution of which the patni was sold and purchased by the decree-holder. When attempting to collect rent the plaintiffs discovered the existence of the darpatni leases and served the darpatnidars with notices under Section 167 of the Bengal Tenancy Act. In the present suit the plaintiff seeks to avoid the darpatnis on the grounds: first, that as incumbrances they have been annulled; and secondly, that they are liable to be set aside as fictitious and benami transactions.

(2.) The trial Court found that the service of notice under Section 167, Bengal Tenancy Act, was not proved but held that under the patni law the leases were not binding on the plaintiff. It further found that the two leases in favour of Madan Mohan and Defendants Nos. 1 and 2 were fictitious and not bona fide. Madan Mohan did not appeal against this decree and on the apppal by the other defendants the learned District Judge agreed with the trial Court in all its findings. This second appeal is by the Defendants Nos. 1, 2 and 9 representing two of the three darpatnis Defendants Nos. 1 and 2's darpatni interest being alleged to be in respect of the share of Mouza Mahabashi held by two sons of Lakshmi Narain and Defendant No. 9's interest being in the other two mouzas. With regard to the darpatni held by Defendants Nos. 1 and 2 the finding of the fact of both the Courts is that it is a benami and fictitious one. This finding of fact cannot be assailed in second appeal and the appeal by these defendants must stand dismissed. As regards Masraf Ali's darpatni the question of law raised has to be examined and determined.

(3.) Mr. Chuckerbutty has said all that can be said on behalf of the appellants.