Aubhoy Churn Maji vs Shoshi Bhusan Bose and Others

Mitter and Macpherson, JJ.—We think that in this case the preliminary objection taken to the hearing of the appeal should not prevail. u/s 153, if there be a question as to the amount of rent annually payable by a tenant, then an appeal lies. In this case there was a question of that nature. The Defendant (Appellant before us) contended that the amount of rent payable annually by him was Rs. 7-81, and not Rs. 15 as claimed in the plaint. That being so, we overrule the preliminary objection. Upon the merits of the appeal it appears to us that the District Judge has disbelieved the oral evidence that was adduced by the Appellant to establish that the distribution of the rent between himself and his brother was effected with the sanction of the landlord, and the District Judge was further of opinion that the rent receipts filed by the Defendant-Appellant, which were genuine, did not amount to a written consent required by Section 88 of the Bengal Tenancy Act. In this view of Section 88 we concur. He adds that even accepting that the rent receipts are sufficient to bring the case within the purview of Section 88 of the Bengal Tenancy Act, still the receipts having been granted by Shoshi Bhusan, the kurta of the family, were not sufficient to bind the other members of it. I am not inclined to agree with the District Judge in that view, but he being of opinion that the oral evidence as to the sub-division of the rent and of the land of the original tenure with the sanction of the landlord is not trustworthy, and that the receipts did not amount to a written consent required by Section 88, it is immaterial to consider whether the act of Shoshi Bhusan, the kurta of the family, was binding in this respect upon the other members. We dismiss this appeal with costs.