AMIRUL ISLAM Vs. SARADA KUMAR SEN

JUDGEMENT

(1.) The subject-matter of this appeal and the suit out of which it arises is a sum of Rs. 10-14- 0, i.e., a sum below Rs. 50.

(2.) The defendants Nos. to 4 were admittedly tenants of the plaintiffs. Towards the end of the year 1337, the defendants Nos. 2 to 4 sold their share in the holding to defendant No. 8. After the transfer both defendants Nos. 1 and 8 were joint tenants of the holding. The defendant No. 8 by the document of transfer Ex. A undertook to pay the arrears of rent due in respect of the share of defendants Nos. 2 to 4, that is to say the defendant No. 8 only undertook to pay a part of the rent due to the share of defendants Nos. 2 to 4. The landlord instituted the present suit for rent of the years 1334 to 1337 B.S. The defence of defendants Nos. 2 to 4 was that they were not liable for the said arrears, but defendant No. 8 was, and in support of their defence they relied upon Section 73 of the Bengal Tenancy Act as amended in 1928. The trial Court held that defendants Nos. 2 to 4 were not liable for the arrears but defendant No. 8 was liable with defendant No. 1 for rent for the period in suit. The learned Munsif had final powers under Section 153 of the Bengal Tenancy Act. In my judgment the question raised and decided by the learned Munsif does not come within the proviso of Section 153, because there was no decision by him on a question relating to title to land or to some interest in land as between parties having conflicting claims thereto. It is admitted that the interest of defendants Nos. 2 to 4 passed to defendant No. 8 towards the end of the year 1337. Defendant No. 8 did not and could not claim to have the interest of a tenant prior to the date of his transfer. In this view of the matter the decision cited before me by the learned Advocate for the appellant, namely, the case of Bepin Chandra Mazumdar V/s. Raj Kumar Sinha is distinguishable because in that case the question as to the liability to pay rent related to a period after the tenancy had been transferred.

(3.) The plaintiffs preferred an appeal against the judgment and decree of the learned Munsif. The learned Additional Subordinate Judge of Chittagong took a different view of the rights and liabilities of the parties and came to the conclusion that defendants Nos. 1 to 4 and 8 were liable to pay rent to the plaintiffs for the years in suit. On the question of liability the provisions of Section 73 will have to be considered hereafter, but it is necessary to dispose of a preliminary objection taken on behalf of the respondents as to the competency of this appeal.