H R CHAMARIA AND CO Vs. SONATAN PAL

JUDGEMENT

(1.) This is an appeal on behalf of the principal defendant, H.R. Chamaria & Co., who may shortly be described as Chamaria, against a judgment and decree of the Subordinate Judge, 2nd Court, Dacca dated 21 December 1925. The suit, as framed, was on the ground that Chamaria was a tenant-at-will under one J.B. Sukeas who was the owner of the property in question. The plaintiff had purchased the right, title and interest of the legal representative of J.B. Sukeas in execution of a money-decree on 2 May, 1919. He was put into symbolical possession by virtue of his purchase on 18 July 1919. The purchase was made in the benami of his son, named Bepin Behary Pal who was joined as defendant 2 in the suit. On 4 August 1919 the plaintiff served notice on Chamaria determining the tenancy under which Chamaria was alleged to have held the property in question as from the e August, 1919. The present suit was brought on 17 September 1919, and the claim was for rent at the rate of Rs. 600 per month from 2 May, to 31 August 1919, and for damages at a certain rate, which it is unnecessary to mention, from 1 September to 17 September 1919. The plaint was subsequently amended by an application made on 23 January 1925, asking for mesne profits or damages up to the date of delivery of possession. By this amendment the original valuation of the suit, which was Rs. 10,000 odd, was increased to Rs. 80,000 odd. The defendant objected to the application for amendment which was overruled by the lower Court. The defendant's main defence was that he was never a tenant of the land under the plaintiff or his predecessor-in-interest, and the plaintiff has no right to maintain the suit against him. His case was that one J.C. Galstaun held an equitable mortgage or, as it may be properly described, as a mortgage by deposit of title-deeds, which was effected in the town of Calcutta under Section 59, T.P. Act, by J.B. Sukeas; and that Galstaun was in possession of the property in suit along with other properties as a mortgagee, and while in such possession Galstaua let out the property at first to a brother of J.B. Sukeas and then to the defendant Chamaria at a rent of Rs. 600 per month. But some time in April 1918 an agreement was entered into between Galstaun and Chamaria that Chamaria would purchase the property in dispute for Rs. 85,000 and that he would have to pay no reat, but would have to pay interest on the purchase money agreed to between them. The sale could not be affected because Galstaun had no right to effect a sale of the property at the time. But the stipulation was that Galstaun would either take the permission of the Court to sell the property on behalf of the infant heir of J.B. Sukeas, or he would himself effect the sale after purchasing the property in execution of the decree on his mortgage which he intended to have. On these pleadings several issues were framed in the lower Court. The main questions are covered by issues 3, 7 and 11. Issue 3 was: Is there any relationship of landlord and tenant between the plaintiff and the defendant.

(2.) Issue 7 was: Was the plaintiff aware of the equitable mortgage in favour of J.C. Galstaun at the time when he purchased the property in suit? If so, can he get khas possession without redeeming plaintiff's mortgage

(3.) Issue 11 was: Whether Mr. J.C. Galstaun is mortgagee in possession of the properties in suit. If so, whether the plaintiff is entitled to recover any amount by way of damages