ADHAR CHANDRA MONDAL EXECUTOR TO THE ESTATE OF LATE JATADHARI PATRA Vs. SHEIKH ABDUL RAHAMAN ALIAS SHEIKH ABDUL RAHIM MONDAL

JUDGEMENT

(1.) This is an appeal by the plaintiffs and arises out of a suit brought by them, for recovery of arrears of rent for the year 1324 to 1327 B.S. at the rate of Rs. 48 2-1. The facts shortly, stated are these: It appears that the jote for which the rent is sued for, originally stood in the name of Khetu-boddya who died many years ago, how long ago we do not know. The defendant No. 1 is the son of Aizaddy who is the son of Khetuboddya. The other defendants are also the other heirs of the original tenant except one. The defence of the defendant No. 1, who alone contested the suit, was that the suit was not maintainable under the provisions of Secs.15 and 16 of the Bengal Tenancy Act: and that the suit was bad for defect of parties, because Namuda, a daughter of the original tenant, was not a party. He also contended that the rent payable was not at the rate of Rs. 48-2-1 but was Rs. 46-2-7. Lastly the defendant claimed abatement of the rent.

(2.) The Court of first instance found on all the issues in favour of the plaintiffs. As regards absence of Namuda one of the daughters of the original tenant, the Court of the first instance found that she was not a necessary party and in the result gave a decree to the plaintiffs at the rate of rent claimed by them. On appeal by the defendant No. 1 the learned Subordinate Judge, it appears, agreed with the First Court as regards the points other than that of defect of parlies. But on the ground that Namuda was not a party to the suit, he dismissed it altogether. The learned Subordinate Judge however, does not deal with the findings of the learned Munsif oh this question. Apparently he accepted the findings of the Court of first instance. The learned Munsif held that Namuda was not in possession of the jote, although the contesting defendant asserted that she was one of the tenants in possession as an heiress of the original tenant. The learned Munsif further found that the defendants who have been sued for rent, were paying rent to the land lords and obtaining dakhilas for them selves and that Namuda was not one of them.

(3.) The plaintiffs have now preferred this appeal against the judgment and defcree of the Subordinate Judge dismissing their suit on the ground that Namuda was not a party and, therefore, the suit was not maintainable against the other defendants.