MAHARAJA BIRENDRA KISHORE MANIKYA BAHADUR Vs. AHAMUD ALI

JUDGEMENT

(1.) This appeal arises out of a suit for rent under the following, circumstances.

(2.) It appears that a brahmattar tenure was held by one Golak and Chandratarn within the zemindari of the Maharaja of Tipperah. The latter brought a suit and obtained a decree for resumption of the lakhraj against Golak in the year 1862, but no rent was assessed on the tenure at the time. On the 27th March 1866, Golak and Chandratarn granted a miras to two persons at a permanent rent of Rs. 45. The latter sold the miras to one Abkjan Bibi on the 28th February 1871, On the 23rd August of the same year, Golak and Chandratarn sold the right to receive rent to the extent of Rs. 33 out of the Rs. 45 reserved as the miras rent, which was described in the conveyance as malikana masahara, to the then holder of the miras, Abkjan Bibi, Subsequently in the year 1875, the Maharaja sued Golak, Chandratarn as well as Abkjan Bibi for assessment of rent. The suit was dismissed by the Court of first instance but was decreed on appeal against Golak and Chandratarn only and was dismissed against Abkjan on the ground that she being an under tenant, she ought not to have been made a party to the suit. In that suit not only was the rent assessed but the Maharaja obtained a decree for arrears of rent, and in execution of that rent decree, the tenure held by Golak and Chandratarn was sold and purchased by the decree-holder, the Maharaja, himself, in 1888. In 1893 a notice under Section 167 of the Bengal Tenancy Act appears to have been served upon the plaintiffs, who are the heirs of Abkjan. No suit, however, was brought by the Maharaja to recover khas possession of the miras. He dispossessed the mirasdar and took possession himself. Thereupon the defendants brought a suit against him for declaration of their miras title and the suit was decreed. The question of rent, however, was not decided in that litigation.

(3.) The present suit was instituted by the Maharaja on the 6th February 1913 for recovery of rent at the rate of Rs. 45 against the defendants who represented Abkjan, the mirasdar. The defence was that by the kobala by which the malikana was sold to Abkjan on the 23rd August 1871, the rent of the miras had been reduced from Rs. 45 to Rs. 12 : that Golak and Chandratarn, the landlords, had not realised rent far more than Rs. 12 since the date of that conveyance and that in any case the encumbrance not having been annulled, the Maharaja was not entitled to get anything more than Rs. 12 as rent of the miras. The Court below has given effect to these contentions of the defendants and the plaintiff has appealed to this Court.