RADHIKA NATH SARKAR Vs. RAKHAL RAJ GAYEN

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs, in an action for rent. The plaintiffs and the pro forma defendants were durputnidars of a mehal within which the disputed holding is situated. In 1901 the putnidar brought a suit for rent against the recorded tenants of the durputni, obtained a decree and proceeded to execute it. The predecessor-in interest of the plaintiffs- appellants, who had previously purchased the share of one of the durputnidnrs, deposited the decretal amount and obtained an order for delivery of possession under Section 171 of the Bengal Tenancy Act. The plaintiffs now bring this suit for rent against the tenant-defendant.

(2.) The claim is resisted on two grounds : first, that the plaintiffs had no title, because they were not entitled to apply for an order under Section 171 of the Bengal Tenancy Act, and in any event, could not obtain delivery of possession of the property with out a proper suit; and secondly, that the defendant had paid the rent claimed to the pro forma defendants, before this suit was brought.

(3.) The Court of first instance overruled these objections and made a decree in favour of the plaintiffs. On appeal the learned Subordinate Judge has dismissed the suit. He has held that the plaintiffs were not entitled to obtain any order under Section 171 of the Bengal Tenancy Act, and that even if they were entitled to do so, they could not obtain possession except by a regular suit. Against this decision the plaintiffs have appealed to this Court.