GOPALDAS CHOUDHURY Vs. SATINDRA KUMAR CHOUDHURY

JUDGEMENT

(1.) The plaintiff-appellant now asks for a declaration that a certain tenancy comprised in khatian No. 5 of Mouza Pathakata, granted by defendant 1 in favour of certain persons, who will by referred to as the Pals, is a tenure which affects the interest of defendant 1 only and is not admitted to be a permanent tenure by the plaintiff. The dispute arose in connexion with certain partition proceedings taken by the Collector of Mymensingh under the Estates Partition Act. The subject-matter of the case was touzi No. 144 and the proceedings were started in the year 1914. The lands form part of Pargana Sherpore and were held ejmali with certain other estates. The first stage before the Collector was to decide what lands should be allotted to the estate actually under partition. The proceedings were held up by a title suit which was eventually compromised. In due course, the Deputy Collector proceeded to take action under Chap. VI of the Act. The dispute actually came to a head when he was making an order under Section 46(1)(iii) of the Act. The plaintiff raised an objection which was overruled. He then fought his point through the various Revenue Courts, his objection to the Board being finally rejected as barred by time on 3 December 1926. The present suit was filed on 19th September 1930. Subsequent to that, a case for partition of the estate held between the plaintiff and the respondent was instituted before the Collector. The Deputy Collector decided that the lands comprised in the disputed tenancy should not be allotted to touzi No. 144.

(2.) Both the Courts below have held that the disputed tenancy is a tenure and not a raiyati holding. The Subordinate Judge dismissed the suit holding (1) that it is barred by Section 119, Estates Partition Act, and (2) that it is barred by limitation, as in his view Art. 14 applies. The Additional District Judge has overruled him on both points holding that Art. 120, Limitation Act, applies. He has however upheld the decree, as in his opinion no case had been made out by the plaintiff within the terms of Section 42, Specific Relief Act. In dealing with this matter the learned Additional District Judge did not clearly distinguish between the questions whether there was any cause of action made out and whether the Court should, in exercise of its discretion, grant a mere declaratory decree. Most of the reasons given by him are relevant to the latter rather than the former. The dispute is due to the definition of the term "assets" in Section 3, Estates Partition Act. The contention of the appellant was that the "assets should be the "rents" received by the Pals from their tenants, while the respondent contended that the "assets" should be the "rents" paid by the Pals to him. One of the terms of the com. promise in the title suit was that this tenancy would be allotted to the saham of the respondent in which case no prejudice would be caused to the Pals. On the other hand, if the Deputy Collector refused to give effect to the terms of the compromise, the Pals would be protected by Section 99 of the Act. The Deputy Collector disposed of the question without coming to any decision on the real point at issue. He said that the tenancy was either a raiyati jote or a tenure admitted by all the recorded proprietors to be a permanent tenure subject only to the payment of an amount of rent fixed in perpetuity. In either event, the "assets" would be the "rents" payable by the Pals to the respondent.

(3.) The first point for our decision, accordingly, is whether the plaintiff has been able to make out any case entitling him to the relief claimed. For this purpose it is necessary to examine the plaint. This document might possibly have been drawn up in clearer terms; but at any rate there is no doubt at all that the plaintiffs case is that the cause of action arose in connexion with the partition case. The history of the matter is set out in para. 4. The right claimed by the plaintiff is that the tenancy created by the respondent is a tenure which in no way binds the interest of the plain, tiff. The respondent certainly had an interest to deny this right as soon as the partition case was started in the year 1914. There can further be no question that he actually did so at some time in the course of the proceedings. Accordingly, in our opinion, the plaint does disclose a cause of action.