NAJERALI Vs. BAITULLA MONDAL

JUDGEMENT

(1.) S.A. Nos. 1402 and 1403 of 1942. These two appeals arise out of two suits for rent. The plaintiffs are the appellants in these two appeals. The facts are that the plaintiffs were the proprietors of Touzi No. 208 of the Nadia Collectorate in regard to 3 annas and 16 gandas 2 krants 2 til share. They had a putni and darputni right in the remaining 12 annas and 3 gaudas 1 kara 2 krants 18 til share. In the year 1931, a suit for partition (being Suit No. 1502 of 1931) was instituted on the Original Side of this Court, to which the plaintiffs were parties either as plaintiffs or as defendants. In that suit a Receiver was appointed to the estate of the plaintiffs. The Receiver took possession on 16 December 1937. The Government revenue payable in regard to Touzi No. 208, fell into arrears. The arrears not being paid before the latest date of payment which was 28 March 1938, the touzi was brought to sale on 25th June 1938, and Baitulla and Jan Mohammad purchased the touzi on behalf of the pro forma defendants in the suit. With a view to annul the putni and darputni interest of the plaintiffs, the purchasers at the revenue sale issued proclamations and notices, both oral and written, in or about the month of Agrahayan, 1345 B.S. The present suit for recovery of arrears of rent was instituted on 13 April 1940, the claim in the suit being for the period 1343 to 1346 B.S. To this suit the tenant defendants were made principal defendants and the purchasers at the revenue sale were joined as pro forma defendants. On 15 June 1940, the Receiver appointed in the partition Suit No. 1602 of 1931 was discharged. Sometime thereafter in September 1940, the pro forma defendants filed a written statement and they alleged that as regards their zemindary interest of 8 annas odd gandas the plaintiffs were not entitled to recover rent due from tenants which fell due since 29 March 1938, that being the date after the latest day of payment of Government revenue and as regards the remaining 12 annas odd gandas shares held by plaintiffs as tenure-holders they stated that the tenure of the plaintiffs having been annulled, the plaintiffs right to recover rent in regard to that share came to an end from the date of annulment.

(2.) The trial Court was of opinion that the sale for arrears of revenue was legal and valid but the notice annulling the tenure of the plaintiffs not being served on the Receiver and the proclamation issued being intended to disturb the possession of the Receiver to the estate of the plaintiffs and no leave of the Court appointing the Receiver having been taken, such proclamation could not, in law, have the effect of annulling the tenures held by the plaintiffs. On these grounds the trial Court held that the plaintiffs were entitled to recover 16 annas rent up to 29-3-1938, and 12 annas odd gandas share of rent thereafter. Against this decree the pro forma defendants preferred appeals to the lower, appellate Court. The plaintiffs preferred cross objections thereto, in which they raised two grounds, namely, that the revenue sale was not legal and secondly, that the tenures held by the defendants were not annulable. The cross-objections were disallowed by the lower appellate Court on the ground that the tenures held by the plaintiffs could be annulled in law and the revenue sale was legal and valid. The lower appellate Court allowed the appeals in part and held that the plaintiffs were entitled to 16 annas of the rent up to the third kist of 1344 B.S., that the annulment took effect in Agrahayan 1345. B.S. when the proclamation was issued and served, that accordingly from the fourth lust of 1344 B.S. to the second kist of 1345 B.S. the plaintiffs were entitled to recover 12 annas odd gandas share of rent, in their right as tenure-holders, that the claim for rent for the third kist of 1345 and 1346 B.S. was disallowed.

(3.) The plaintiffs have preferred these appeals, Mr. Panehanon Ghose, who appears on behalf of the plaintiffs, has raised only one point in support of the appeal, namely that theugh the service of the proclamation did not actually dispossess the Receiver in whose hands the plaintiffs estate was at she time, yet the effect of the proclamation was to interfere with the collection of rent by the Receiver and as no leave of the Court appointing the Receiver was taken, the proclamation so served did not operate in law to determine the tenures held by the plaintiffs. Accordingly, he submitted that the decree passed by the trial Court ought to be maintained. In support of his submission, Mr. Ghose has referred to various passages from Karr on Receiver and cited several decisions of the Indian Courts as also of the English Courts to which I shall refer hereafter.