ABDUL RAHMAN MULLICK Vs. AZAHAR ALL KHAN

JUDGEMENT

(1.) The plaintiffs who are mutawallis of a wakf created by one Kader Bux in Aswin 1316, have sued the defendant for arrears of rent and also for enhancement of rent under the provisions of Section 30(b), Ben. Ten. Act. The claim for arrears of rent has not been resisted, the defendants only contesting their right to enhance rent. Shortly after creating the wakf by which Kader Bux appointed himself mutawalli, he granted in favour of the defendant a mukarari mourasi lease by a registered document in the month of Magh 1316. It is this lease that has been put up by the defendant against the plaintiff's claim for enhancement. It is not disputed that the plaintiffs have become mutawallis on the death of Kader Bux. The question is whether the lease is binding on the plaintiffs, a question which is complicated by the proceedings of an earlier suit inter partes.

(2.) That suit was a suit instituted by the plaintiffs against the defendant for khas possession. It was instituted in 1929 and was numbered Title Suit No. 171 of 1929. The plaintiffs alleged therein that the lease granted by Kader Bux to the defendant was not binding on the wakf, being in excess of the powers of a mutawalli and that the defendant was a trespasser on the land after the death of Kader Bux. The defendant resisted the claim for khas possession on two grounds. He maintained: (1) that the said lease was a valid lease and (2) that in any event he having acquired occupancy rights could not be evicted from the lands. The appellate Court held that the lease was invalid, being in excess of the powers of Kader Bux, as mutawalli, but that the defendant was an occupancy ryot and so could not be evicted from the lands. In this view of the matter that suit was dismissed. There was no further appeal to this Court.

(3.) The plaintiffs have now sued for enhancement of rent under Section 30(b), Ben. Ten. Act, on the footing that the defendant is an occupancy ryot. They contend that by reason of the final judgment passed in Title Suit No. 171 of 1929, the defendant cannot be heard to say that he is other than an occupancy ryot. The Court of first instance accepted the said contention and granted enhancement. The lower appellate Court has held that it is still open to the defendant to fall back upon the lease granted to him by Kader Bux, and set it up in defence. On the merits it has held that the said lease is binding on the wakf and accordingly has refused the plaintiffs prayer for enhancement. The whole controversy between the parties is whether the findings in the judgment passed in Title Suit No. 171 of 1929 that the said lease is not binding on the wakf and the defendant is an occupancy ryot only are conclusive between the parties.