MAHADEB PAL Vs. SIBU CHARAN PAL

JUDGEMENT

(1.) The subject-matter of this suit is a part of a non-transferable holding, namely, the land described in schedule kha of the plaint, which is a part of the land of schedule ka, which represents the entire holding. Defendant No. 10 is The Fort Gloster Jute Manufacturing Co., Ltd., the admitted landlord, and the recorded tenant was one Rup Chand Pal. Rup Chand sold the land to one Becharam Pal who again sold it to one Tarini Charan Sardar, on November 16, 1901. The defendant company did not recognize either Becharam or Tarini as their tenant. Tarini died sometime before the year 1921, and the finding is that he died without any male issue, leaving him surviving two widows A modi and Nistarini alias Subasmoyee. Neither Amodi nor Nistarini was recognised as tenant by the landlord company. On April 26, 1921, Amodi claiming to be entitled to the whole of the property left by Tarini, sold the holding to defendant No. 5. The conveyance was in the names of defendants Nos. 5 and 7; but it is admitted that defendant No. 7 has no beneficial interest, the sole beneficial owner being defendant No, 5. In this document there is mention of the fact that Taraini left another widow Nistarini alias Subasmoyee. About three months later Nistarini assumed the role of the sole surviving widow of Tarini find in that assumed character sold the holding to defendant No. 4. In fact then Amodi was alive and she was alive for a considerable number of years thereafter. In 1924 defendant No. 5 sold the land to the plaintiff. Before this sale by defendant No. 5 to the plaintiff the landlord company had not recognized defendant No. 5 as tenant; apparently they proceeded on the footing that they would not recognize any of the transferees but would hold their recorded tenant Rup Chand responsible.

(2.) In the year 1929, however, the landlord company brought a suit for rent against defendant. No. 5 and recorded a decree. This was the first act of recognition, as the evidence on the record shows, of defendant No. 5 as tenant by the landlord. When they obtained the decree they put it up for execution and at the execution sale defendant No. 1 purchased the holding. On that the plaintiff has instituted the present suit for a declaration that the rent decree passed in that suit, namely, Rent Suit No. 766 of 1929 is not a rent decree at all, and the sale in execution thereof is void and cannot affect his interest. He accordingly prayed for khas possession of the said described in schedule kha, his possession being disturbed. In the plaint, however, i.e., recites the facts by which he claims title to the whole tenancy, namely, the land of schedule ka and confines his relief to a portion thereof, namely, the land of schedule kha because from it he has been dispossessed by the auction-purchaser. There are other allegations in the plaint as to the nature of the interest of one Uttam who was in possession of the land of schedule kha. This question need not be determined, inasmuch as according to the findings arrived at by the Courts below, if the plaintiff has title, and if the sale in execution of the decree passed in the rent suit has not affected his interest in the land, he is entitled to a declaration of title to the lands of schedule ka and possession of the, lands of schedule kha; the only other question being whether he has title to the whole of it or only to a part as co-sharer with defendant No. 4. So far as the landlord company are concerned, they took up a very curious attitude. They admitted that they instituted the suit for rent against a wrong man, that is to say, although they instituted the suit for rent against defendant No. 5, they maintain in the present suit that defendant No. 5 is not their tenant. This defence is in effect an admission with regard to a good pari of the claim as made by the plaintiff.

(3.) So far as the defendant No. 1 is concerned, he took up the position that the rent suit was a competent suit and the; decree passed therein was a valid rent decree, and the sale in execution of that decree passed the entire holding to him. He supports this defence en the following grounds: He says that the holding is a non-transferable holding, and it is in fact so. Then he says that on the transfer of such a holding, it is open to the landlord either to recognize the transferee as his tenant or not, and if there be transfers to many persons, it is open to the landlord to recognize any of the transferees whom be chooses. The landlord company instituted the suit for rent in 1929 against defendant No. 5 and thereby recognized defendant No. 5 as their tenant. The suit, therefore, was against the tenant who represented the holding in the landlord's sherista, and the decree passed therein was a decree for rent and the sale was a valid sale of the holding. This is the argument which is urged on behalf of the defendant No. 1.