SYED AHAMMAD Vs. MAKKU MIA

JUDGEMENT

(1.) This appeal is on behalf of the defendants. The facts are somewhat peculiar. On 18-4- 1933, two suits for rent in respect of the same holding were filed by two sets of cosharer landlords, viz., 6 annas and 10 annas landlords. In each suit, the remaining osharers as also the tenant defendant were made parties. The rent suit filed by the ten annas cosharer was decreed on 20-11-1933. This was later than the decree passed in the rent suit brought by the six annas cosharers which was decreed on 2-11-1933. Both the decrees were executed. The dates, however, when the execution cases were initiated, do not appear. In execution of the decree obtained by the ten annas cosharer the tenancy was brought to sale on 10-6-1936, and possession was taken through Court on 13-5-1939. In execution of the decree obtained by the six annas cosharer, the identical holding was sold on 12-10-1936, and possession was taken on 24-2-1939. The purchase in each execution case was made by the executing decree- holders. It appears that the six annas cosharers leased out the disputed tenancy to the defendants on 26-5-1939; the ten annas cosharers in their turn, granted a lease to the plaintiff of the identical land on 5-11-1939. The plaintiff instituted this suit for declaration of title and for recovery of possession. On the statement of facts referred to above, it is clear that the question in controversy is one of the priority between the two purchasers, viz, the purchase by the ten annas cosharers and the purchase by the six annas cosharers. The plaintiff alleges that the purchase by the ten annas cosharers had the effect of a rent sale within the meaning of Section 159, Ben. Ten. Act, and that the defendants purchase had the effect of a money sale. The case went to trial and it appears from order No. 14 dated 4-6- 1941, that the pleaders of the parties admitted that the decree and the sale of each set of cosharers had the effect of a rent decree and of a rent sale. Evidence, however, was not taken on these matters. Relying on these admissions, the trial Court passed a decree in the plaintiff's favour on 10-61941. Against that decree an appeal was taken to the lower appellate Court giving rise to Title Appeal No. 216 of 1911. This appeal was disposed of on 7-11-1941. The lower appellate Court directed a remand to the trial Court for decision of the following issues: Was Rabeya one of the tenants of the holding? Was she made a party to the suit instituted by the common manager? If not, was the decree btained by the common manager a decree under Chap. 14, Ben. Ten. Act? The common manager, it may be pointed out, represented the ten anna cosharer.

(2.) This issue had referred to the nature of the decree obtained by the ten annas cosharers and the nature of the consequential sale in execution of that decree.

(3.) Both the Courts below have concurred in decreeing the plaintiff's suit. The lower appellate Court has held that the purchase by the ten annas cosharers had the effect of a rent sale and the purchase by the six annas cosharers had the effect of a money sale inasmuch as the notice under Section 148A (7), Ben. Ten. Act, was not proved to have been served on the remaining cosharer landlords.