Dhirendra Nath Roy and Others vs Rajendra Nath and Others

Graham, J.—These appeals are against orders of the Subordinate Judge, Backerganj; confirming orders of the Munsif, first Court, Barisal, and arise out of certain execution proceedings. The plaintiffs decree-holders, who are the appellants before us, applied for service of sale-proclamation u/s 165, Bengal Tenancy Act. The co-sharer landlords, who were pro forma defendants in the suit, objected on the ground that the decree was not a rent decree, the plaints in the rent suits not being in compliance with the provisions of Section 148-A, Bengal Tenancy Act. The trial Court gave effect to this contention, and that decision was on appeal affirmed by the learned Subordinate Judge.

The plaintiffs-decree-holders have now appealed to this Court, and it has been urged on their behalf that the Courts below have misconstrued the decree holding erroneously that it is not a rent decree, that the plaint in the rent suit complied with the provisions of Section 148-A, Bengal Tenancy Act, and that sale-proclamations should have been issued u/s 165 of that Act.

The learned vakil for the appellants has referred to several decided cases in support of his contention, reliance being chiefly placed upon the cases of Jagabandhu Nandi and Others Vs. Abdul Hamid Mea and Others, and Nundalal Chowdhury v. Kala Chand Chowdhury 15 C.W.N. 820. The latter of these cases is distinguishable from the present case as the plaintiffs in that case alleged in their plaint that they had reason to believe that the rent due to their co-sharer pro forma defendant had been paid and consequently they, were justified in suing for their own share of the rent only.

The case reported in Jagabandhu Nandi and Others Vs. Abdul Hamid Mea and Others, lends support to the contention on behalf of the appellants. It was there held in circumstances somewhat similar to those in the present case, that there was sufficient compliance with the requirements of Section 148-A, Bengal Tenancy Act, and that the decree in suit was a rent decree. In a more recent case, however, Gangamani Biswas and Others Vs. Rabja Ali Chaukidar, , a contrary view was taken and it was held that in order that a plaint may be in accordance with the provisions laid down in Section 148-A, Bengal Tenancy Act, the first requisite is that the co-sharer landlord should sue for recovery of rent due to all the landlords and secondly, if he is unable to find out the dues of the co-sharers, he would be entitled to proceed with the suit for his share only. In the case in question the plaintiffs sued for their share only of the rent stating that a certain amount might be due to the co-sharer landlords and prayed that under certain conditions stated in the plaint a decree for the total amount might be made. The Court (Newbould and B.B. Ghose, JJ.) held that the plaint was not in accordance with Section 148-A, Bengal Tenancy, Act the terms whereof should be strictly complied with, and that a substantial compliance with the requirements of the section would not be enough to give the auction-purchaser a title to annul in-cumbrances.

Looking to the terms of Section 148-A and having regard particularly to the words

has instituted a suit to recover the rent due to all the co-sharer landlords

it seems to us to be plain that it is an essential condition that the suit should have been instituted for the recovery of the entire rent due to all the co-sharers, and we have no hesitation in following the more recent decision cited above. We may observe further that in the plaint in the present case while the plaintiffs sued for Rs. 1,999-6-0 alleged to be due as their share they specified the precise sum viz., Rs. 400-13-9 which they said might be due to their co-sharers, and that being so there was nothing to prevent them from suing for the entire amount. This circumstance serves to distinguish the present case from the case in Jagabandhu Nandi and Others Vs. Abdul Hamid Mea and Others, , where the amount due to the co-sharers was apparently not known or ascertainable.

For the above reasons and following the decision of this Court in Gangamani Biswas and Others Vs. Rabja Ali Chaukidar, , we hold that these appeals fail, and they are accordingly dismissed.

Mukerji, J.

I agree.