ANADINATH BANERJEE Vs. ANNAPURNA DEVI

JUDGEMENT

(1.) This appeal is by the defendants. The question in dispute is whether the darpatni interest of the plaintiff has been annulled. The zemindar is the Maharajah of Burdwan. He obtained a rent decree against the patnidar and in execution thereof purchased the patni. He took proceedings to annul the darpatni of the plaintiff under Section 167, Ben. Ten, Act. The plaintiff's husband entered into negotiations for a settlement of the patni with his minor sons; but they eventually broke down and the patni has now been settled with the defendants. On an allegation that the defendants are attempting to realise rent from the tenants direct the plaintiff has been granted a permanent injunction restraining them from doing so. Four main points have been put forward by Mr. Chakrabarty in support of the appeal: (1) the darpatni was annulled by the proceedings taken under Section 167, Ben. Ten. Act; even if the notice was not in fact tendered to the plaintiff's husband the service was a good one under the provisions of the Civil Procedure Code; (2) by the purchase of the patni the darpatni was automatically annulled; (3) the proceedings taken by the Maharajah were sufficient to annul it altogether apart from Section 167, Ben. Ten. Act; (4) no case has been made out for granting the plaintiff a permanent injunction.

(2.) In dealing with the factum of service the learned Munsif approached the matter in a rather unrealistic way. He seems to have thought that an attempt would be made on behalf of the Maharajah to suppress the notice and that any witness to the service in any way connected with the Maharajah's office should be viewed with suspicion. The learned Subordinate Judge however approached the question from the right point of view. He pointed out that, so far from it being to the interest of the Maharajah to suppress the notice, it was to the interest of the plaintiff and her husband to deny all knowledge of it and attempt to make out a case of suppression. He however upheld the finding of the Munsif that it was in fact suppressed. The contents of the return are as follows As the plaintiff is a pardanashin lady, the peon was unable to serve it on her personally and handed it over to her husband and on his refusal to accept it or give a receipt, served it by hanging.

(3.) The husband was formally identified by D. W. 4 and was personally known to defendant 1, who accompanied the peon. As the plaintiff's husband was personally known to defendant l, this is not a case of a trick being played on him by D. W. 4. It must be a case of his deliberately allowing a false return to be submitted. The fact that he was a witness to the service shows his anxiety in the matter and his only interest was to see that service was effected properly. A false return would do him no good at all. His conduct would appear to be inexplicable. On the other hand, it was to the interest of the plaintiff's husband to deny the service. The reason why the learned Subordinate Judge came to, what appears to be a perverse finding, was that he felt that he was bound to do so in view of the evidence of the P. W. 1, an advocate of this Court. This gentleman was relied upon to prove an alibi by establishing that when the plaintiff's husband was supposed to be refusing the service in his village he was actually in Calcutta. The learned Subordinate Judge thought himself faced with the difficulty of deciding whether defendant 1 was behaving like a lunatic or whether the advocate was giving false evidence to oblige the plaintiff. Had the matter rested there it would have been impossible for me to interfere with the finding.