NARENDRA NATH DUTTA Vs. ALANGA SUNDARI DASYA

JUDGEMENT

(1.) The plaintiff is the appellant in this case and in the suit out of which this appeal arises he sought to recover possession on declaration of his title of certain land which was claimed by the defendant to appertain to her under-raiyati holding in which she had acquired occupancy rights. It appears that this under-raiyati holding was held under a man named Bepin Chandra Paramanik against whom the landlord, Sobha Dutt, instituted rent Suit No. 402 of 1932 for the recovery of arrears of rent. The suit in question was in respect of the years 1335 to 1338 B. Section As regards the years 1335 to 1337 B.S. Sobha Dutt was admittedly an eight anna landlord of Bepin Chandra Paramanik's holding. She acquired the remaining eight annas interest on 13 January 1931 so that she became a sixteen annas landlord for the year 1338 B.S. She obtained a decree in rent Suit No. 402 of 1932 and in execution of this decree she put the tenant's holding to sale. The plaintiff purchased this holding at the civil court sale which was held on 17 May 1933. The sale was confirmed on 24 June 1933 and the plaintiff obtained delivery of possession on 7 October 1933. He then issued a notice under Section 167, Ben. Ten. Act, for the annulment of in cumbrances, but the defendant was unwilling to vacate the land in suit on the ground that she had acquired occupancy rights therein and that her interest in the holding was consequently protected under Section 160(d), Ben. Ten. Act. She further claimed that her interest was protected as she had a dwelling house on the land. The plaintiff thereupon instituted the suit out of which this appeal arises and the main point urged by the defendant, in addition to those which have already been mentioned, was to the effect that the decree obtained by Sobha Dutt did not operate as a rent decree and that in those circumstances all that passed to the plaintiff at the civil court sale on 17 May 1933 was the right, title and interest of the former tenant Bepin Chandra Paramanik. The first Court held that Sobha Dutt's decree operated as a rent decree and, with regard to the respondent's contention that her interest was protected under Section 160, Ben. Ten. Act, the learned Munsif decided that she was not entitled to protection under Section 160(c) of the Act but was protected under Section 160(d). A remand was directed after an appeal to the learned Subordinate Judge and, after remand, it was held by the lower Appellate Court that Sobha Dutt's decree did not operate as a rent decree. It was further held that the respondent was not protected at all under Section 160 Ben. Ten. Act, but as Sobha Dutt's decree did not operate as a rent decree, the plaintiff was not entitled to recover khas possession of the respondent's holding.

(2.) The main question for consideration in connexion with this appeal is whether or not the decree obtained by Sobha Dutt in rent Suit No. 402 of i1932 operates as a rent decree. If this decree has the effect of a rent decree, the holding is liable to sale under Section 65, Ben. Ten. Act, and it follows that the purchaser of that holding takes it with power under Section 159 of the Act to annul incumbrances. Section 65, Ben. Ten. Act, is in the following terms: Where a tenant is a permanent tenure-holder, a raiyat holding at fixed rates or an occupancy-raiyat, he shall not be liable to ejectment for arrears of rent, but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon.

(3.) In a case, in which the landlord is not the sole landlord, but is a co-sharer with other persons, he can only institute a rent suit in accordance with the provisions of Section 148-A of the Act, the material portion of which for the purpose of this case is Sub-section (1) which provides that: A co-sharer landlord may institute a suit to recover the rent due to him in respect of his share in a tenture or holding, by making all the remaining co-sharer landlords parties defendant to the suit, and claiming that relief be granted to him in respect of his share of the rent against the entire tenure or holding.