BEPIN CHANDRA MUKHOPADHYA Vs. TARAPRASANNA CHAKRABARTY

JUDGEMENT

(1.) This appeal is on behalf of defendant 2 in a suit for recovery of khas possession instituted by the plaintiffs who are admittedly cosharer landlords. Defendant 1 was admittedly the tenant, holding a non-transferable occupancy holding. On 24 March 1915 he sold the holding to defendant 2, who went into possession after his purchase. Notwithstanding the sale to defendant 2 by defendant 1 the plaintiffs sued defendant 1 for the arrears of rent of the years 1319 to 1322 (i.e., for rent due up to 13 April 1916), making their cosharer landlords parties defendants. This suit was numbered Rent Suit No. 2001 of 1916. To the said suit defendant 2 was not made a party defendant as the plaintiffs refuse to recognize him as a tenant. Defendant 1 appeared in the suit, pleaded that he held a transferable holding and had transferred the same to defendant 2. Thereafter he did not take any further part in the suit with the result that Rent Suit No. 2001 of 1916 was decreed ex-parte. It has been found however in this suit that the holding is a non-transferable one and that finding has not been challenged and cannot be challenged now.

(2.) The plaintiffs put the decree passed in Rent Suit No. 2001 of 1916 in execution and purchased the same on 15 March 1919 at the auction sale and took symbolical possession on 15 November 1919. They brought this suit on 19 March 1929, that is within 12 years of their auction purchase. The suit has been brought in their character of auction-purchasers. In para. 6 of the plaint they recite the purchase of the holding on 15 March 1919 at the rent sale and make it the foundation of their suit. They recite the sale of defendant 1 to defendant 2 and characterise it as fraudulent and without consideration. They do not base their case on abandonment and claim sixteen annas right in the property in suit which they could not have done if their case had been based on abandonment. Defendant 2 filed a written statement stating that the holding was a Kaem Karsha transferable holding, that he ought to have been joined as a party defendant in Rent Suit No. 2001 of 1916 and not having been impleaded therein he says that the decree obtained therein is a money decree. He pleaded further that the suit was barred by limitation and that by asserting a Kaem Karsha right for more than 12 years to the knowledge of the landlords he had acquired such a right.

(3.) The Munsif found that the holding was in fact a Kaem Karsh transferable holding. In that view he held that the plaintiffs were bound to make defendant 2 a party defendant to Rent Suit No. 2001 of 1916 and they not having done so the decree passed in that suit was a money decree and the auction sale at which the plaintiffs purchased vested in them only the right, title and interest of defendant 1 and he had none at the date of the said sale. The suit: was accordingly dismissed by the trial Court. On appeal the Subordinate Judge held that the holding was a non-transferable one and that the decree in Rent Suit No. 2001 of 1916 had the force of a rent decree under the Bengal Tenancy Act and in that view he has decreed the suit holding at the same time that though defendant 2 had possession since March 1915 the suit was not barred by limitation.