BAMAPADA SARKAR Vs. SREEMUTTY SAKUNTALA DASSI

JUDGEMENT

(1.) THIS is an appeal by defendant No. 1 against a decision of the Subordinate Judge of the first Court of Hooghly which modified a decision of the Munsif at Serampore. The suit relates to a nontransferable occupancy holding and was brought by the plaintiffs under circumstances which I shall presently state for confirmation of their possession and for other reliefs. The plaintiffs purchased a moiety of the holding and obtained recognition from the co-sharer- landlords who owned 14-annas interest in the property. Subsequent to the plaintiffs purchase defendant No. 1 in the present suit who was a co-sharer-landlord of the remaining 2-aunas and who had never recognised the transfer to the plaintiffs in this suit commenced a suit for rent under the provisions of Section 148-A of the Bengal Tenancy Act. The parties to that suit were as plaintiffs the 2-annas co-sharer-landlords who had never recognised the transfer and as defendants the 14-annas co sharer-landlords who had recognised the transfer to the plaintiffs. There were also on the record of the suit the recorded tenants, but tile plaintiffs in the present suit were never made a party in the Section 148A proceedings and the question that arises for our decision in this appeal is whether by reason of the absence of the plaintiffs from those proceedings defendant No. 1 in this appeal obtained a rent-decree in the Section 148A proceedings in respect of the land or merely a money-decree. The first Court held that defendant No. 1 by virtue of his suit obtained a rent-decree in respect of the property in suit and he accordingly dismissed the plaintiffs suit. The learned Subordinate Judge, however, held that in the absence of the present plaintiffs from the Section 148A proceedings defendant No. 1 did not obtain a rent-decree. There does not seem to be any direct authority on the point though we have been referred to one ox two authorities which I must presently notice. But I should have certainly thought that the decree obtained was a rent-decree provided, as in the present case, the recorded tenants were brought on the record and that it was not necessary that defendant No. 1 in this suit in order to obtain a rent decree should bring on the record a tenant such as the plaintiff whose transfer he had never recognised at all. The only authority against this view is one referred to in the last edition of Mr. Sen's book on the Bengal Tenancy Act, at page 689. The case is not a reported Since 95 Ind. Cas. 42.?[Ed.] case but it is a decision of a Judge of this Court sitting singly. The decision was given in Sasi Bhusan Chowdhury V/s. Khiroda Sundari 95 Ind. Cas. 42. We have read that judgment and there are passages or a passage which might possibly support the contentions now urged before us on behalf of the respondents in this appeal, but taking the judgment as a whole we do not think that it can be taken to have dealt with the point we have got to decide or that it is an authority against the view which we have already expressed. We were referred on behalf of the appellant to passages in Haro Chandra Poddar V/s. Umesh Chandra Bhattacharjee 5 Ind. Cas. 39 : 14 C.W.N. 71 : 11 C.L.J. 20, Shukuruddin Chowdhury V/s. Hemangini Debi 13 Ind. Cas. 132 : 16 C.W.N. 420 and Bajab All V/s. Dina Nath Saha 33 Ind. Cas. 261 : 19 C.W.N. 1305. But we do not think that the questions raised in those cases are really identical with the matter which we have to decide. The only other decision which was relied on behalf of the respondents in this appeal was the decision in Nabob Khage Habibulla V/s. Shek Basar 24 C.W.N. clii (152). In that decision the proceedings under Section 148A were commenced by a co-sharer-landlord who had never recognised the transfer, the defendants in the suit were the remaining co-sharers and the recorded, tenants and subsequently the co-sharers who were defendants and who had previously recognised the transfer of a portion of the non- transferable holding were placed in the category of plaintiffs and the suit proceeded with all the co-sharer landlords as plaintiffs. A decree was obtained and the question arose whether it was a rent-decree in the absence of the transferees of a portion of a nontransferable holding whose transfer had been recognised by some only of the co-sharer-landlords. It was there held that the decree was not a rent-decree but merely a money-decree. But in that case the decree was obtained by all the co-sharer landlords, some of whom had previously recognised the transfer and clearly it would have been inequitable to treat the decree obtained in that way as a rent-decree which could be enforced as such to the detriment of the person whose transfer had already been recognised by some of those who obtained the decree. In the case before us no such difficulty arises. The only plaintiff in the rent suit was defendant No. 1 in the present proceedings, the co-sharer landlord who had never recognised the transfer and in my opinion that distinguishes, the present case from the decision in Nabab Khaje Habibuilah v. Shek Basar 24 C.W.N. clii (152). We think, therefore, that defendant No. 1 in the rent suit obtained in. the Section 148A proceedings to which all the recorded tenants were parties and the other co-sharer landlords a, rent-decree, which he could enforce as such. For the reasons we have indicated we think that the decision of the Munsif was right and that of the Subordinate Judge wrong, and the appeal is accordingly allowed and the plaintiffs suit dismissed with costs in all Courts. Panton, J.

(2.) I agree.