AMULYA CHARAN MISRA Vs. PRANKRISHNA ADHICARY

JUDGEMENT

(1.) These are eight appeals from the appellate decrees of the District Judge of Midnapur who affirmed the decrees of the Munsif of Tamluk. The facts are that within the estate of Mahisadol Raj which was under the Court of Wards an occupancy holding was held by Madhu and Bepin Bera. It was a large holding of over 8 acres containing 42 plots. They in course of time sold 30 plots to one or several of the 8 plaintiffs before us and 8 plots to other persons retaining 4 plots in their possession. On 15 September 1930, the Court of Wards acting for the landlords applied for a certificate for arrears of rent against the heirs of the old tenants Madhu and Bepin Bera. The certificate was signed by the Deputy Collector and in due course the holding was sold on 15 March 1932 and purchased by the appellant in this Court. The appellant was duly given possession by the Court. Thereafter the eight plaintiffs instituted their suits for declaration of their title and recovery of possession of the plots which they had purchased from Madhu and Bapin Bera. In deciding title of the plaintiffs the Courts had to decide what was the effect of the certificate sale in respect of the transfers in favour of the plaintiffs. It was urged for the appellant that the certificate sale was a sale for arrears of rent and as such the holding in arrears passed by the sale and the plaintiffs purchases were of no avail against the defendant auction-purchaser.

(2.) For the plaintiffs it was urged that the sale was not a proper rent sale but it was reduced to a money sale inasmuch as the tenants who represented the holding were not all impleaded as defendants. The plaintiffs relied on the provisions of Section 146-A, Bengal Tenancy Act. The facts in respect of that section are that one of the plaintiffs Pran Kristo Adhikari purchased a portion of the occupancy holding in suit from another person who had purchased it from the original holders. The purchase of Pran Krishna was made after February 1929 when the amendments of the Bengal Tenancy Act came into force. The transfer fee was duly realized from him by the registering officer and duly sent to the Collector and the Collector served a notice upon the landlord on 31 May 1930. The certificate for arrears of rent was issued on 15 September 1930 more than three months after the receipt of the notice. Upon these facts the plaintiffs urged that the certificate sale was not a proper rent sale inasmuch as the entire body of co-sharer tenants were not made defendants. The entire body of co-sharer tenants is defined in Section 146.A. It is first stated that all co-sharer tenants of a holding shall be liable to the landlord jointly and severally and a decree for arrears of rent and the sale in execution of such a decree shall be valid against all co-tenants whether they have been made parties defendants to the suit or not and against the holding in the manner provided in Ch. 14, Bengal Tenancy Act if the defendants to the suit represented the entire body of co- sharer tenants in the holding. Then in Sub-section 3 the term entire body of co-sharer tenants is denned. It is stated, the entire body of co-sharer tenants shall be deemed to be represented by the defendants if such defendants include four classes of tenants as enumerated thereafter. Now Pran Krishna Adhikari does come under the third of the four classes enumerated thereafter which refers to such co-sharer tenants who having purchased an interest in the holding have given notice of the purchase under Section 26-C.

(3.) It has been urged for the appellant on the authority of the case in Sashi Kanta Acharjee v. Lechoo Sheikh that the four classes should be taken as disjunctive and if the defendants fulfil the conditions of any one of the classes they shall be taken to be representing the entire body of tenants. That was a decision by E. C. Mitter J. In our opinion certain sentences in that judgment are unhappily expressed as E. C. Mitter J. himself stated in a later decision in 1936 in Ayesha Khatun V/s. Md. Hossain Molla (1936) 41 CWN 85. On a plain reading of Sub-section 3 of Section 146-A it is clear that the entire body of cosharer tenants is to include the names of every one of the four classes and the landlord in order to get a proper rent decree must implead as defendants every cosharer tenant who comes under the description of any of the four classes. In other words, if any cosharer tenant comes under any of the four classes and he is not sued in the rent suit then the decree will not be a proper rent decree. In this view, we are of opinion that the Court below was right in holding that the certificate sale was not a rent sale within the meaning of Ch. 14, Ben. Ten. Act. It amounted to a money sale, that is to say, the auction purchaser purchased the right, title and interest of the defendants in the suit.