MADHUMALA Vs. ALFAZADDI KAZI

JUDGEMENT

(1.) This case comes before us by way of second appeal and arises out of a suit brought to recover rent and cesses with interest at 1 anna per rupee per month in respect of a jama, of Rs. 1-5-6; and, astounding as it may seem, this litigation which has lasted for over 4 years is now confined to the point as to whether interest is payable upon Re. 1-5-6.

(2.) The decision of the lower appellate Court was in favour of the obligation to pay this interest and it was from that determination that the appeal was presented to this Court, and came in the first instance before Mr. Justice Brett. That learned Judge considered that the matter was concluded in favour of the appellant before him by a decree in a prior suit which appeared to him to support the plea of res judicata. That point has not been urged before us, but Dr. Priya Nath Sen has endeavoured with considerable ability to support the judgment under appeal on other grounds. It appears to me, however, that his argument must fail. The whole contention proceeds upon the theory that this suit is based upon an agreement subsequent to the passing of the Bengal Tenancy Act. That, I think, is not a true description of the position. The obligation arises out of a tenancy created prior to the passing of the Act, and the present suit as against the present defendant rests on that obligation. Though, there has been a distribution or apportionment of the rent this was not destructive of the original obligation nor did it bring into operation the provisions of Section 67 of the Bengal Tenancy Act. And, I come to that conclusion notwithstanding the further argument addressed to us by Dr. Priya Nath Sen that the recognition of his acquisition of the interest in respect of which he is now being sued must be taken together with the apportionment as creating a now contract. That would be, 1 think, giving too great effect to that recognition. Admittedly, neither the apportionment nor the recognition alone would bring the case within the operation of the Bengal Tenancy Act and I do not think that their conjoint operation can create a result more favourable to the respondent before us.

(3.) The result is that we think the decision of the District Judge should be confirmed. This appeal must, therefore, be allowed with costs.