MENAJUDDIN Vs. HERONUDDIN MULLICK

JUDGEMENT

(1.) This appeal is on behalf of the defendants in a rent suit. To appreciate the controversy between the parties, it would be necessary to state a few facts. The lands in suit, in respect of which rent has been claimed by the plaintiffs appertain to a nim howla which is recorded in khatian No. 74 and belonged originally to one Muhammad Selim Khalifa. After Muhammad Selim's death, it devolved upon Abdul Hanif Khalifa and others. The rent of the nim howla having fallen into arrears, the superior landlord instituted a rent suit against the tenure holders and obtained a rent decree on 31-1-1986. The decree was put into execution on 28-3- 1936, and a sale was held on 11-8-1936, the purchaser being one Habibur Rahman. After the execution case was started, and before the sale took place, the tenure was put up to sale in execution of a mortgage decree obtained by a mortgagee decree-holder against the tenants, and it was purchased by the present plaintiffs on 2-5-1936. The mortgage sale was confirmed on 22-7-1936. The plaintiffs have on the basis of their purchase at the mortgage sale brought this suit for recovery of rents against the tenants who are in possession of the disputed lands under the owners of the nim howla.

(2.) The defence was that the plaintiffs did not obtain any title by virtue of their purchase at the mortgage sale inasmuch as the sale in execution of the rent decree passed the tenure itself to the auction purchaser Habibur Rahman who got it free and clear of any body else's interest. The trial Court gave effect to this contention of the defendants and dismissed the plaintiffs suit. On appeal, the judgment was reversed and the learned District Judge of Bakargunge who heard the appeal decreed the plaintiffs suit, being of opinion that the plaintiffs not being made parties to the proceedings in execution of the rent decree, the sale had not the effect of a rent sale under chap. XIV, Bengal Tenancy Act. It is the propriety of this decision that has been challenged before us by Mr. Jitendra Nath Guha who appears in support of the present second appeal to this Court.

(3.) It seems to us on hearing the learned Advocates on both sides, that the view taken by the Court of appeal below is right. The decision of a Special Bench of this Court in Krishnapada Chatterjee V/s. Manadasundari , which was based on the pronouncement of the Judicial Committee of the Privy Council in Forbes V/s. Bahadur Singh ( 14) 1 A.I.R. 1914 P.C. 111 (114), is that the right to bring a tenure or holding to sale under Section 65, Bengal Tenancy Act, exists so long as the relationship of landlord and tenant subsists between the parties and consequently if the relationship does not exist at the date of the sale, it would not have the effect of rent sale under chap, xiv, Bengal Tenancy Act. This was a case where the landlord ceased to be the landlord after obtaining his decree, but before putting the tenure to sale, but the same principle has been applied to cases where the tenant's interest ceases before the date of the sale, and it has been held that in such cases also the interest of the transferee who was not made a party to the execution proceeding did not pass by the sale which had not the effect of a sale under chap. XIV, Bengal Tenancy Act. Vide Binapani Debi V/s. Banku Behari Mondal . In our opinion, the principle enunciated in this case applies to the facts of the present one, and consequently it must be held that the plaintiffs title remained unaffected by the sale in execution of the rent decree.