Bama Sundari Dasi vs Sukurullah Kazi and Others

Francis William Maclean, C.J.—The first point taken in this appeal was, that inasmuch as the plaintiff was not registered, the suit was not maintainable, having regard to Sections 78 and 38 of Bengal Act VII of 1876. The question is, whether the plaintiff is a proprietor within the meaning of the term as used in those sections. I think that the purview of the Act is shown by the preamble which runs as follows

Whereas it is expedient to make better provision for the preparation and maintenance of registers of revenue-paying and revenue-free lands, and of proprietors and managers thereof." Looking at the Sections to which I have referred and to the preamble [406] of the Act, I think the term "proprietor" was intended to be confined to a zemindar and not to a putnuiar; the first objection therefore fails.

Another preliminary objection was taken that an appeal would not lie haying regard to Section 153 of the Bengal Tenancy Act. Having regard to sub-section (b) of that section, it seems to me that the decree in this case has decided a question relating to title to land or to some interest in land as between parties having conflicting claims thereto, and therefore in my opinion an appeal lies.

This further question consequently arises. The Munsif found as a matter of fact that the relation of landlord and tenant did not subsist between the plaintiff and the defendant from whom she is claiming rent. The Subordinate Judge did not go into that matter at all. His judgment is absolutely silent upon the point. I am therefore of opinion that, as regards this point, which is the foundation of the plaintiff''s claim, the case must be remanded to (sic). Subordinate Judge for him to go into that question, and as the whole case is remanded, it will not prevent him from going into any other points which may have been raised, or from deciding, if he thinks fit, that a decree for the entire rent might be made, instead of a decree for a share only.

Upon these grounds the appeal will be allowed and the case remanded to the Lower Appellate Court for retrial. The costs of this appeal will abide and follow the result.