HON BLE RAJA BEJOY SINGH DUDHURIA AND ON HIS DEATH HIS HEIRS AND LEGAL REPRESENTATIVES KUMAR CHANDRA SINGH DUDHURIA Vs. SARAT CHANDRAGOSWAMI (GOSSAIN IN VAKALATNAMAH)

JUDGEMENT

(1.) These twenty-one appeals are on behalf of the plaintiff in as many suits instituted by him for recovery of 8 annas share of the rent in respect of certain raiyati jotes. One Sarat Chandra Goswami has been made a pro -forma defendant on the allegation that he is entitled to the remaining 8 annas share of the rent. The admitted facts are these: Before the year 1903 there were in existence four tenures held by certain persons. At that time the plaintiff was the owner of the 8 annas share of Dihi Poaili and Thakurdas Goswami was the owner of the other 8 annas share of the said Dihi. In 1903 t he plaintiff gave his share in the owner Dihi in patni to the said Thakur Das Goswami. The position, therefore, was that after the year 1903 Thakur Das was the owner of 8 annas share in patni right. He died and both the patni and zemindari right belonging to him was inherited by Ashutosh Goswami and others. Between the years 1903 and 1921 Ashutosh Goswami and others purchased in execution of rent decrees the four tenures which had been created long before the patni was created by the plaintiff in favour of Thakurdas Goswami. On June 24, 1921, Ashutosh Goswami and others sold their zemindari right namely 8 annas share in the aforesaid Dihi to one Sarat Chandra Goswami.Whether thefour tenures which they had purchased in execution of rent decrees passedby the conveyance to Sarat Chandra Goswami is one of the questions raised in these suits. But in the view that I am taking of the rights of the parties itwould not be necessary to decide thatpoint which is reallya point which concerns Sarat Chandra Goswami and his vendors Ashutosh Goswami and others and I hold that it would not be right,if the case can be disposed of without deciding this point, that this point should be decided in the absence of Ashutosh Goswami and others.

(2.) On the 1 of Jaistha 1330 corresponding to May 15, 1923, the patni tenure of Ashutosh Goswami and others was sold under Regulation VIII of 1819 andat the sale the plaintiff, that is to say, the zemindar himself, purchased thepatni tenure. The plaintiff has instituted these suits for recovery of 8 annas share of rent from the raiyats is possession and his right to get the reliefs prayed for, it is admitted, depends upon the existence or non-existence of the four tenures purchased by the patnidars Ashutosh Goswami and others under whom the raiijats sued for admittedly hold the lands. In the Courts below the plaintiff wanted to show that these four tenures had disappeared on two grounds and it is on the disappearance of these two tenures that the plaintiff wouldonly have the right to get the relief claimed in thesuit. If these tenures are in existencethen the proprietors of those tenures, whoever they may be, either Ashutosh Goswami and others or Sarat Chandra Goswami, would be entitled to get the 16 annas of the rent and the plaintiff would not be entitled to get anything from the defendants in the suit because he has not the right to ignore the tenures if there are in existence and set anything directly from the raiyats holding under the tenure holders. As I have stated the plaintiff wanted to establish the non-existence of these four tenures by seeking to prove two facts. First of all he wanted to show that by reason of the patni sale under Regulation VIII these tenures had automatically ceased to exist. This would depend upon the fact as to whether these tenures had been created before or after the creation of the patni. If they had been created after the creation of the patni then the purchaser at a patni sale under the Regulation would acquire the patni in the same state in which it was created. The tenures created after the creation of the patni would automatically disappear and no action would be necessary for the purchaser to avoid them. If these tenures however had been created before the creation of the patni they would be subsisting even after the patni sale. The Court of first instance came to the conclusion that these tenures have been created before the creation of the patni. Before the Appellate Court the plaintiff conceded that that finding of the trial Court was right. The first ground, therefore, on which the plaintiff attempted to show that these tenures had ceased exist before the period in suit accordingly fails. The second ground urged by the plaintiff is on the ground of merger and on that point arguments have been addressed to me in great detail. It is admitted in the course of the argument before me that these four tenures had been created before the Transfer of Property Act came into operation. That is the finding of the learned Subordinate Judge and that finding has not been challenged. These four tenures were acquired by Ashutosh Goswami and others after the Transfer of Property Act came into force. It is admitted that the acquisition of these tenures was after the year 1903 and before the year 1921. The question, therefore, is whether the tenures merged in the superior interest which Ashutosh Goswami and others held. The superior interest consisted of 8 annas share in zemindari right and 8 annas in patni right. If the tenures had merged in their superior interest, the plaintiff as a purchaser of the patni would be entitled to get 8 annas share from the raiyats who held under the tenure-holders.

(3.) The lower Appellate Court has recorded a finding that there was an intention on the part of Ashutosh Goswami and others to keep separate their z&mindari and patni right on the one hand and their tenure-holder's rights on the other. This is a finding which is a proper finding, and in my judgment, it cannot be challenged in second appeal. On these facts an important question of law has been raised on behalf of the appellant. The learned Advocate appearing on behalf of the appellant says that the question of intention is immaterial altogether and the case has to be decided on the plain words of Section 111, Clause (d) of the Transfer, of Property Act, inasmuch as the acquisition of the tenures by the holders of the superior interest was after the Transfer of Property Act had come into operation. This raises the important question as to whether the provision of Section 111, Clause (d) of the Transfer of Property Act would apply to a case where the tenures have been treated before that Act came into operation. This depends in my judgment on the interpretation that has to be put on Section 2, Clause (c) of the Transfer of Property Act. That section says that nothing contained in the Transfer of Property Act shall be deemed toaffect any right or liability arising out of a legpl relation constituted before this Act (Transfer of Property Act) comes into force or any relief in respect of any such right or liability.