DINONATH GHOSE Vs. OFFICIAL TRUSTEE OF BENGAL

JUDGEMENT

(1.) The defendant prefers this appeal against a decree making him liable for a share in the cost of erecting an embankment. The facts are not in dispute. The plaintiff is zemindar to the extent of nine annas in Mouza Kamdebpur and the remaining seven annas belong to the pro forma defendant. The village is let in patni and the defendant bought the patni in 1912. The costs of erection were ascertained and apportioned in 1909 and 1910, that is, before the defendant acquired his interest under the provisions of Part VI of the Embankment Act (II B.C. of 1882). The plaintiff's share was realized in 1918, and in 1920, he brought this suit to recover from the defendant the amount which he was authorized to recover from the patnidar. The defendants contention is that the amount should be realized from the former patnidar who owned the interest at the time when the apportionment was made.

(2.) The question turns upon the terms of Section 74 of the Act. In Section 72 the liability of the estate is clearly defined. The sum is declared to be a first charge on the estate in respect of which it is apportioned. The sections which deal with the zemindar's right of recoupment from the tenure-holders are Section 59, Section 68 and Section 74 in particular. There is no dispute about the making of the order, or the amount, so I need only refer to Section 74, which runs as follows: Every zemindar...to whom any sum...is payable...may recover the same...in the manner provided for the recovery of arrears of rent, etc.: Provided that the right of interest of any person holding from the defaulter shall not be affected by any sale held under these provisions.

(3.) It is argued that the defendant is a person holding from the defaulter and that in consequence he is not liable to pay.