GADADHAR ROY CHOUDHURY Vs. DHIRENDRA NATH GHOSE

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration that certain tenure which the plaintiffs held under the defendants is not liable to be sold under the Patni Regulation and for a perpetual injunction restraining the defendants from selling the tenure under the Patni Regulation. The Courts below have agreed in dismissing the suit. Hence this appeal by the plaintiff. The tenure was created by a potta, dated 29 Aswin 1308 corresponding to 15th October 1901. The potta which is Ex. (1) in this case describes this tenure as a patni. The contention of the learned advocate for the appellants is that as in this potta there is no express provision for sale of the patni taluk, for arrears of rent no presumption of its liability to sale under the Patni Regulations attaches to this tenure. In Krishtomonee Debea v. Gooroogobind Shiehanto, 2 Sevastre's Rep Vol. II, 173, L.S. Jackson and E. Jackson JJ. observed as follows: We think . . . that on attentive comparison of [the different sections of Regulation 8 of 1819 a patni taluk created subsequently to the passing off that. Regulation must be held liable to sale even though an express condition to that effect may not have been inserted in the kabuliyat. We find no authority for the supposition that since the recognition by that enactment, of tenures of a particular kind under a specified name, there have been patni taluks of two descriptions, one liable to sale, the other not so liable. It seems to us that when parties mutually agree on the one hand to create, on the other to accept a tenure which they call a patni taluk, without actual words limiting or defining it as something of a separate kind, they intend to make it a patni taluk within the meaning of Regulation 8 and consequently liable to sale under Section 3, Clause 3 of the Regulation.

(2.) The decision in this case has not been dissented from in any other subsequent cases. In Sourish Chandra Roy V/s. Saroj Ranjan Sinha Mitter J. while discussing this case observed as follows: In this case it is to be observed that the patni was created subsequent to the enactment of the Patni Regulations and as no document was produced the presumption that the words "patni taluk" bore the meaning ascribed to it by Regulation was not displaced or rebutted.

(3.) The patni taluk in question was created long after Patni Regulations were enacted. I cannot add usefully anything to the above observations of the learned Judges in Krishtomonee Debea V/s. Gooroogobind Shiehanto 2 Sevastre's Rep Vol. II, 173 case in answer to the contention of the learned advocate for the appellants that the mere use of the words "patni taluk" in the potta of 1901 without a special clause reserving the right to sell for arrears of rent does not carry with it the presumption that the tenure is liable to be sold under the Patni Regulations. The next question is whether there are any other terms of the potta which displace or rebut the presumption and make the tenure in question a tenure other than a patni taluk within the meaning of the Patni Regulations. It was contended on behalf of the appellants that there were certain clauses in the potta which limited or defined the incidents of the patni taluk and which would indicate that the right to bring to sale for arrears of rent under the Patni Regulations was given up by the landlord. The learned advocate for the appellants drew our attention to the following terms in Clause (5) of the potta: If there be latches on your part to pay rent, etc, I shall be entitled to realize the entire dues consisting of the principal sum together with interest and costs by attachment and sale of any moveable or immovable properties standing in your own names or benami in the names of others owned by you after bringing a suit according to the law relating to the landlord and tenant, regarding realization of rent etc, that are now in force and shall come into force in future and on getting a decree therein .... You shall abide by the laws relating to realization of rent that are now in force and shall come into force in future.