LAWS(PVC)-1937-6-7

BIBHUTI BHUSAN PAL CHAUDHURY Vs. SMMAYA DEBY

Decided On June 10, 1937
BIBHUTI BHUSAN PAL CHAUDHURY Appellant
V/S
SMMAYA DEBY Respondents

JUDGEMENT

(1.) This appeal, which is on behalf of the defendants, arises out of a suit for rent. The claim in the suit is for arrears of rent and cesses for the year 1336 and up to the Kartick Kist of 1337. It has been valued at Rs. 6948-13-9 in the plaint. The rate of rent according to the plaintiff was Rs. 2700 and cesses Rs. 450-11.0 per year. There are five defendants; defendants 1 and 2 may for brevity's sake be called the Pal Chaudhury defendants and Nos. 3 to 5 the Ray defendants. The plaintiff claims as the trustee of her husband and Debnandan Mukherjee. The trust deed was challenged in the lower Court, but the finding of that Court is that it is a valid instrument. This finding has not been challenged before us. The learned Subordinate Judge passed a decree for Rs. 4143-10-9. He held that the plaintiff was entitled to claim rent at the rate of Rs. 2609-8-6 and cesses at the rate of Rs. 151-13-0 per year. He further held that half of the rent and cesses due for the year 1336 had been satisfied by the Pal Chaudhury defendants before suit. Both sets of defendants have joined in this appeal, but the plaintiff has not filed any cross-objection. Debnandan Mukherjee was the patnidar and the defendants hold a darpatni taluk under him. This darpatni taluk was created by a registered potta on 2nd April 1868 (Ex. E-II-l), the demised premises being Mouza Hanspukuria included in a permanently settled estate (Touzi No. 431) and Char Hanspukuria included in a temporarily settled estate (No 988). Under the patni taluk owned by Debnandan Mukherjee and which is now vested in the plaintiff as trustee there was another darpatni taluk held by the Midnapore Zamindary Co. Ltd. The plaintiff avers in the plaint that Debnandan Mukherjee failed to pay the patni rent due to the zamindar with the result that his patni taluk was advertised for sale under Regn. 8 of 1819, but the sale which was to have taken place on 1 Agrahayan 1337 was averted by the Midnapore Zamindary Co. Ltd. depositing the zamindar's dues, and the said Company thereafter took possession of the patni taluk under the provisions of Section 13 (4) of Regn. 8 of 1819, and since than the said darpatnidar Company remained in possession as representative of the plaintiff by realizing rents by virtue of the plaintiff's right and kept the plaintiff's possession intact.

(2.) The plaintiff claimed rent for 1336 and up to Kartick 1337 on the footing that thereafter the Midnapore Zamindary Company went into possession as girbidar" (para. 1 of the plaint). Two sets of written statement were filed, one by the Pal Chaudhury defendants, and the other by the Bay defendants. The specific pleas as taken by the Ray defendants in their written statement are: (a) that the trust deed executed by Debnandan Mukherjee was a fictitious, collusive and benami document, and also not executed and signed according to law; (b) that the plaintiff cannot recover as her name has not been registered in the zamindar's sheristha; (c) that the darpatni taluk can only be made liable; (d) that plaintiff's claim was barred by limitation; (e) no arrears due for the years in suit; (f) plaintiff cannot claim for the month of Kartick of 1337; (g) that Char Hanspukuria had been made khas by Government, and was not in possession either of the plaintiff or of the defendants, and the defendants are not liable for rent at the rate of Rs. 2700 but entitled to abatement. Debnandan agreed to grant an abatement at the rate of Rs. 225 per year. In any case there should be apportionment of rent of both mouzahs, e. g. Hanspukuria and Char Hanspukuria; (h) 300 bighas of land had gone under water, hence there should be further abatement of rent. There are general pleas that the plaintiff's suit is not maintainable and she is not entitled to claim rent. The Pal Chaudhury defendants in their written statement challenged the trust deed, pleaded that Debnandan agreed to allow abatement of rent at the rate of Rs. 225 per year on account of Char Hanspukuria. They further pleaded that Debnandan had split up the darpatni taluk into two tenures, one to be held by the Bay defendants and the other by the Pal Chaudhury defendants and that they, the Pal Chaudhury defendants, had paid up their dues for the year 1336. This written statement also contains vague pleas to the effect that the plaintiff's suit is not maintainable.

(3.) Mr. Chakraburty appearing for both sets of defendants raises four points before us : (1) that the plaintiff is not entitled to claim at all, the right to sue being in the Midnapore Zamindary Co. Ltd.; (2) that at any rate the Subordinate Judge ought to have deducted not Rs. 96-7-6 from the yearly jama but the sum of Rs. 225; (3) that the darpatni had been split up into two before the period in claim; and (4) the form of the decree is bad. The Pal Chaudhury defendants ought not to have been made liable for what remained due for the year 1336, The second and third points have been dealt with by the learned Subordinate Judge, but there is no indication in his judgment of the questions raised and involved in points Nos. 1 and 4.