JABBAR ALI SARDAR Vs. MONMOHAN PANDEY

JUDGEMENT

(1.) The tenants are the appellants in this group of eight appeals which arise out of proceedings under Section 105, Ben. Ten. Act. The respondent landlord claims settlement of fair and equitable rent in respect of the lands of the appellants who have been entered in the Reeord-of-Rights as settled raiyats. The defence mainly was that the defendants were mokarari tenants whose rents were not liable to enhancement. Both the Courts below have held that the jamas are liable to enhancement and settled rents in respect thereof. The Assistant Settlement Officer enhanced the rents under Section 30(b), Ben. Ten. Act, for rise in the price of staple food crop to two and half annas in the rupee. The learned Special Judge reduced it to two annas in the rupee. Except this modification the decisions of the first Court in the cases before us were upheld in appeal.

(2.) Some preliminary objections have been taken before us with regard to the validity of the proceedings in the trial Court which are common grounds in all these appeals. The first objection under this head is on the ground that Gunendra Nath Basu Mallik who made the applications under Section 105, Ben. Ten. Act, was a receiver appointed by Court in respect of the property in suit and as the applications were filed without the leave of the Court which appointed him receiver the proceedings are bad in law and they should not have been continued. During the course of the proceedings Gunendra Nath Basu Mallik sold his interest in the lands in suit to the respondent before us --Monmohan Pandey--who continued the proceedings under Section 105, Ben. Ten. Act. There is no evidence on the record, as has been admitted by the appellants vakil, except the kobala executed by Gunendra Nath Basu Mallik in favour of Monmohan Pandey, relating to the appointment of Gunendra as receiver in respect of this property. Prom a perusal of the kobala it appears that Monmohan Pandey had brought a suit on a mortgage which he held against Gunendra Nath. In that suit Gunendra was appointed receiver by the Court for the purpose of selling the mortgaged properties by private treaty for paying off the mortgage debt. Gunendra under the authority thus given to him sold the properties to the mortgagee Monmohan Pandey.

(3.) On these facts, the first question that has to be determined is whether the proceedings were bad and void ab initio not having been instituted with the leave of the Court appointing Gunendra as receiver. In the first place, Gunendra's appointment as receiver was limited to a particular purpose. In the second place admitting that he was appointed a receiver under Order 40, Rule 1, Civil P. C, with all the powers and liabilities attached to a receiver, there does not seem to be any bar to his instituting these proceedings. As I have said there is no evidence as to the terms under which the receiver was appointed ; and it may be presumed that he was appointed under Order 40, Rule 1, Civil P.C., and his appointment was in terms of the form given in Appendix F to the Civil P. C. which is the form in use in the mofusil. Under those terms the receiver is vested with all the powers mentioned in Order 40, Rule (1)(d). Under that sub-clause the receiver is vested with the power of bringing suits for the management, protection, preservation and improvement of the property and the present proceedings are proceedings taken in course of proper and due management and for the improvement of the property. But it is said that these proceedings were started by Gunendra in his own name and not as receiver. The omission as to the description of the plaintiff as receiver does not render a suit or proceeding incompetent if under the letter of appointment he has the power to institute the suit and it has been instituted in the course of the management of the property over which he has been appoiuted receiver. In the case of Jagat Tarini Dasi V/s. Nabagopal Chaki [1907] 34 Cal. 305, the learned Judges observe at p. 318 thus: A Court may authorize a receiver to sue in his own name, and that a receiver who is. authorized to sue, though not expressly in his own name, may do so by virtue of his appointment with full powers under Section 305 (corresponding to Order 40, Rule 1) is supported on principle and authority and is consistent with the existing practice.