DR JAHARLAL DAS Vs. JITENDRA NATH MANDAL

JUDGEMENT

(1.) Touzis Nos. 355 and 394 of the twenty-four Pergunahs Collectorate were owned by a large number of proprietors, who in groups had opened a number of separate accounts. Separate accounts Nos. 4 and 5 of each of those touzis were opened in the names of Kumud Mondal group and Jugal Mondal group respectively, and separate account No. 18 of the first mentioned touzi and No. 19 of the last mentioned touzi were opened in the name of Radha Binode Mandal. Radha Binode is dead and his estate has vested in his executor, Dr. Jaharlal Dass, the appellant before us.

(2.) In 1902 Radha Binode Mondal granted by the potta, Ex. 17, a permanent tenure of his share in the said two touzis, as recorded in the aforesaid two separate accounts Nos. 18 and 19, to Kumud and Jugal groups of proprietors. One of the terms of the potta is that the tenure-holders are to pay out of the reserved rent the revenue payable in the grantor's share to the Collector as it fell due and to pay the balance as munafa to him. The tenure-holders further made themselves liable to pay damages to the grantor, if for their default in the payment of revenue for separate accounts Nos. 18 and 19 the grantor's share in the estates was sold by the Collector.

(3.) Radha Binode held six sub-tenancies under this permanent tenure. Kumud and Jugal groups paid the revenue for ki January, 1932 payable for separate accounts Nos. 18 and 19 but did not pay the revenue payable in respect of their own shares in the two touzis, namely for separate accounts Nos. 4 and 5. Other proprietors of some other separate accounts also failed to pay their share of the revenue for the said kist, with the result that all the separate accounts in default were advertised for sale by the Collector and in terms of Section 13, Bengal Land Revenue Sales Act (11 [XI] of 1859 hereafter called the Act) the Collector put up for sale in the first instance one separate account in default of each of the those two touzis. The learned advocate appearing for the respondents tells us that separate account No. 2 of touzi No. 355 and No. 1 of touzi No. 394 were the separate accounts which were put up to sale by the Collector in the first instance. This fact is not admitted by the appellant's advocate and there are at present no materials on the record which would enable us to say whether the respondents advocate's statement is correct or not, as the sale papers of the Collector which we are told were produced in the Court of first instance have been taken back. The point is not however material in the view we are taking of Section 53 of the Act. The highest bids offered did not, however, cover the arrears of revenue due for the shares put up for sale in the first instance with the result that the Collector stopped the sale and made the declaration in terms of para. 1 of Section 14 of the Act. No recorded proprietor of the touzis exercised the option of purchase with the result that all the separate accounts were merged into one account and it was then found that the entire estates were in arrears. They were accordingly put up for sale on 20-6-1932 and were purchased by Bholanath Mondal. The respondents Jitendra Nath Mondal and others are the legal representatives of Bholanath Mandal. It has been found by all the Courts that Bholanath was a benamdar of Kumud and Jugal groups. These six appeals before us are in respect of one rent suit brought by Bholanath Mondal for the years 1339 to 1345 in respect of the six sub-tenancies which Radha Binode held under the permanent tenure created by Ex. 17. His case is that as purchaser of the entire estates at a revenue sale he had the right to annul and had in fact annulled the permanent tenure and so he had become the immediate landlord of the said six sub-tenancies. The learned Subordinate Judge in whose Court the said rent suit was fifed and the learned Additional District Judge on appeal dismissed the suit. On further appeal our learned brother Chakravartti J. decreed the suit for the years 1343 to 1345. He dismissed the plaintiff's claim for the years 1339 to 1342 on the ground that the aforesaid permanent tenure had been annulled only on 2nd Bysack 1343. He held that though in the written statement the defendant sought to resist the claim of the plaintiff on two independent grounds, one of them only had to be considered, because the other was not "pursued by him in the course of the trial." It would be convenient at this stage to summarise the defence and the findings of the Courts below and of our learned brother. The defendant pleaded: (I)(a) that Bholanath Mandal, the purchaser at the revenue sales, was the benamdar of Kumud and Jugal groups.