BEPIN CHANDRA ROY CHOWDHURY Vs. PROFULLA NARAIN ROY

JUDGEMENT

(1.) These six appeals arise out of six suits for joint possession of certain occupancy holding, which were purchased by the defendant who is a co-sharer of the plaintiff in a Zamindari. Plaintiff s case is that these occupancy holdings are non-transferable and that the defendant by purchase thereof at auction sales did not acquire any right to the same and that, therefore, he (the plaintiff) was entitled to get joint possession to the extent of his share in the Zemindari. The Court of first instance found in four of the suits (which gave rise to Second Appeals Nos. 974 and 1183 to 1 85 of 1918) that the decrees in these cases were passed in suits brought by one of the co sharer landlords as plaintiff, but that they were decrees for the entire rent payable to both the co-sharer and that the other co sharer was made a party defendant in the suits. The Court accordingly held that the decrees in execution of which the occupancy holdings ware sold were decrees for rent and that, under these circumstances, the plaintiff could not get a decree for joint possession as against the defendant. It should be mentioned that the plaintiff made an alternative prayer in the plaint for assessment of fair rent in the event of the Court holding that the plaintiff was not entitled to get possession. The Court of first instance did not deal with this alternative case, being of opinion that it should be gone into in another suit. On appeal by the plaintiff, the learned District Judge without going into the nature of the decree held that the plaintiff was entitled to joint possession, and accordingly gave a decree to the plaintiff for joint possession of the lands. The defendant has appealed to this Court.

(2.) The whole case turns upon the question whether the decrees in execution of which the holdings were sold were decrees for rent under the Bengal Tenancy Act, with the consequences attaching to such a decree. It was pointed out by the learned Pleader for the appellant before us that in two of the cases, namely, Appeals Nos. 974 and 1184 of 1918, the decrees for rent were obtained by one of the co sharers for his share of the rent. That being so, the plaintiff is certainly entitled to joint possession of the lands comprised in these two cases. With regard to the remaining two cases, namely, Appeals Nos. 1183 and 1185, it is stated on behalf of the appellant that the decrees for rent, although obtained by one of the co sharers as plaintiff, were for the entire rent and that the other co-sharer landlord was made a party defendant. In tie other two cases, i.e., Nos. 994 and 995, it is stated that both the co sharers jointly obtained decrees against the tenant. Now if the decrees for rent were obtained jointly by both the co sharers or by one of the co-sharers making the other co-sharer a party to the suit and for the entire rent of the holding, in either of these two cases, the decree being a decree for rent under the Bengal Tenancy Act, the sale held in execution of such a decree passed the holding to one of the co-sharer landlords as it would to a stranger : and in such circumstances the plaintiff is not entitled to a decree for joint possession. The cases must, therefore, go back to the lower Appellate Court in order that the question mentioned above may be gone into and the cases disposed of. If the lower Appellate Court finds that the decrees ware decrees for rent, that Court will send the cases bask to the Court of first instance for assessment of fair rent and in that event, bath parties will be entitled to adduce evidence on the question of fair rent.

(3.) The result is that Appeals Nos. 974 and 1184 are dismissed with costs. There will be one set of hearing fee for both the appeals. In the other four appeals, namely, Nos. 1183, 1185, 994 and 995, the decrees of the lower Appellate Court are set aside and the cases are remanded to that Court to be dealt with according to observations made above. In these four cases costs will abide the result.