SREE SREE RAMCHANDERJI Vs. HEM CHANDRA SINGH

JUDGEMENT

(1.) This is a second appeal by three Hindu deities represented by their shebait Rameshwar Prasad Singh who-brought a suit under Order 21, Rule 103, Civil P.C. The dispute relates to an area of 33 bighas 13 kathas out of a nakdi jote which belonged to the defendants second party They executed a sudhbharna bond dated 14 June 1921 in respect of the disputed 33 bighas 13 kathas in favour of the plains tiffs. In 1930 the defendants first party when are the landlords of the holding brought & suit for rent against the defendants seconds party, describing the holding to be of 36 bighas 7 kathas 3 dhurs, and obtained a decree in execution of which they purchased the holding and took possession of it on 18th May 1932. The plaintiffs then filed an application under Order 21, Rule 100 Civil P.C., but it was dismissed on 16 January 1933. Thereupon they brought the present suit on 15 January 1934. Their main allegations were that the decree-for rent obtained by the defendants first party was a money decree because the suit was brought in respect of a portion of the holding, the area of the entire holding being; 38 bighas 1 katha 3 dhurs, and all the tenants interested in the holding were not made defendants in the suit. They further asserted that even if the decree was a rent, decree their encumbrance not having been, annulled under the provisions of Section 167, Ben. Ten. Act, the defendants first party as purchasers had no right to dispossess them.

(2.) The main defence in the suit was that the sudhbharna bond of the plaintiffs was not a bona fide transaction and that the decree in question was a rent decree the suit being in respect of the entire holding and against the entire body of tenants. It was alleged that though the previous area of the entire holding was 38 bighas 1 katha 3 dhurs the raiyats surrendered two plots of the holding, namely plots 54 and 373 having an area of 1 bigha 14 kathas, in 1331 and since then the landlords were in khas possession of those two plots. The area of the holding was thus reduced to 36 bighas 7 kathas 3 dhurs and it was for this area that the rent suit was brought. The learned Munsif who tried the suit dismissed it holding that the decree in question was a rent decree because the claim was for an entire holding and all the tenants interested in the holding were made defendants in the suit. On the question whether the sudhbharna bond of the plaintiffs was a bona fide transaction he found in their favour. On appeal his decision has been affirmed by the Additional Subordinate Judge. Hence this second appeal. The first point raised on behalf of the appellants is that the decree for rent was a money decree. The first ground urged in support of this contention, namely that all the tenants interested in the holding were not made defendants in the suit, is concluded by the concurrent findings of fact. Both the Courts below have found that all the persons who were recorded in the landlord's books were made parties to the suit. That being so, the plea that the suit was not brought against the entire body of tenants must fail.

(3.) On the question whether the suit was in respect of a portion of the holding it has also been found by the Courts below that at the time of the suit the area of the holding was 36 bighas 7 kathas 3 dhurs and the suit was for the rent of this holding. The previous area of the holding of course was 38 bighas 1 katha 3 dhurs, but in 1331 the raiyats surrendered the plots 54 and 373 comprising an area of 1 bigha 14 kathas and this has been found by both the Courts below. The learned advocate for the appellants however contends that the two plots 54 and 373 being included in their sudhbharna bond, there could be no valid surrender in respect of those plots without their consent. In support of this contention reliance is placed on Section 86, Clause 6, Ben. Ten. Act. The learned Subordinate Judge has found that since the surrender in 1331 the landlords have been in possession of the surrendered plots 54 and 373 and the plaintiffs never raised any objection to their possession. The learned Sub-ordinate Judge has therefore held that there was implied consent of the plaintiffs to the surrender. Apart from this fact, Section 86, Clause 6, Bengal Tenancy Act, does not in my opinion, seem to apply to a nontransferable holding. Though the Section speaks in general terms of a holding it has to be read with the other provisions of the Act. Occupancy holdings in the absence of proof of any custom to the contrary are presumed to be nontransferable. Suppose a raiyat after mortgaging his holding surrenders it without the mortgagee's consent to his landlord who comes into possession, the mortgagee then sues upon his mortgage and obtains a decree in execution of which he purchases the holding and seeks to obtain possession. The landlord, unless he has given his consent to the purchase, is entitled to ignore it altogether and though he might have come into possession on the strength of an invalid surrender he can successfully resist the purchaser's claim for possession. The purchaser cannot force himself upon the landlord as his tenant without his consent. If this is the position of the mortgagee, how can he claim that the surrender could not be valid unless it was made with his consent? Thus Section 86, Clause 6 would obviously be of no avail to him.