RAMESH CHANDRA DUTTA Vs. TINKAWARI SAHA

JUDGEMENT

(1.) After hearing Mr. Das for the appellant and Mr. Sanyal for the respondents we are of the opinion that the judgment of the lower appellate Court so far as it dismisses the plaintiff's claim for proportionate share of the surplus sale proceeds should be reversed.

(2.) We agree with the lower appellate Court that by reason of the rent sale, whatever title either the plaintiff or defendants 2 to 7 had had in the property was extinguished and a complete title to the holding vested in the rent sale purchaser. There are, however, the surplus sale proceeds which ought to go to the person to whom the tenancy belonged. It was held in a previous suit to which both the plaintiff as well as defendants 2 to 7 were parties that the plaintiff acquired title by his purchase to 7 1/4 bighas out of the lands comprised in the holding. As between the plaintiff and defendants 2 to 7 therefore the plaintiff would be entitled to proportionate share of the surplus sale proceeds. Section 169, Bengal Tenancy Act, has got nothing to do with the plaintiff's claim in this respect. If there is no claim of this nature which has been established in a civil Court, the executing Court will be bound to distribute the surplus sale proceeds in accordance with the provisions laid down in Section 169, Bengal Tenancy Act. That section, however, cannot bar a regular title suit for establishment of the plaintiff's claim to any portion of the surplus sale proceeds.

(3.) The result, therefore, is that we allow this appeal, set aside the judgment and decree of the lower appellate Court and restore those of the trial Court. We make no order as to costs in this Court. The plaintiff will be entitled to get his costs in the Courts below from the defendants. Sharpe, J. I agree.