Kumar Madheva Surendra Sahi and Another vs Awadh Missir and Others

Adami, J.—These two second appeals arise out of suits instituted by the to shares landlords of Mauza Mahmadpur against certain of their tenants u/s 105 of the Bengal Tenancy Act, 1885, read with Section 30(b), and Sub-section (1), Clause (a), of Section 52 of the Act.

It appears that 10 or 12 years before the suit, at the instance of a mortgages, a Receiver was appointed by the Court in respect of the eight-annas share in the Mauza owned by the father of plaintiff No. 2, who is now proprietor of the share. The two co-sharer landlords joined in the institution of the suit as required by Section 168 of the Bengal Tenancy Act, but did not join with themselves the Receiver, who, however, filed a petition asking to be made a plaintiff on the 10th August 1918, four months after the institution of the suit. No order was passed on the petition and the Receiver did not appear at the bearing.

In both the lower Courts the objection was raised by the defendants that the failure to join the Receiver as a plaintiff in the suit was a bar to the maintainability of the action,

The Assistant Settlement Officer overruled the objection and settled fair and equitable rents. On appeal the Special Judge set aside the order of the lower Court holding that the suits were not maintainable, as the Receiver was a necessary party to the applications.

It is contended before us that, in the circumstances of the case, the Receiver was not a necessary party and I am of opinion that the contention is sound.

There was nothing before the lower Courts to show what were the powers and duties of the Receiver under the order of the Court which appointed him; ordinarily, his function would be to collect rents and otherwise safeguard the property in the interest of the mortgagee; and in the absence of evidence on the point the Trial Court was fully justified in rejecting the objection. There can be no doubt that if the Receiver had been appointed in the course of a suit in which the title of the co-sharer landlord to a share in the estate was in dispute, it would have been absolutely necessary to join him as a party to the proceedings u/s 105 according to the requirements of Section 188, but in the present case there was no dispute as to the title of plaintiff No. 2; the Receiver was appointed merely to ensure the re payment of a mortgage-debt. The Receiver had no title to the property nor interest in it; though appointed long before the final publication of the Record of Rights, his name is not entered in the record as having any interest at all in the estate. The recorded proprietor landlords are the plaintiffs.

The Receiver is entitled to be represented in a suit the result; of which may be to affect the property in custodia legis, but here no attempt his been made to interfere with the right of the Receiver to the property entrusted to his care. Though the appointment of a Receiver may in many cases operate to change possession it has no effect whatever on the title of the party to the property which is placed in the possession of the Receiver.

Section 188 of the Bengal Tenancy Act requires that all the co-sharer landlords should be joined as parties in proceedings authorised to be taken by a landlord under the Act, and, in my opinion, the provisions of the Act have been complied with in joining the two plaintiffs who alone are shown by the Record of Rights to have title as landlord. It might have been well to allow the Receiver to be added as a plaintiff but his absence does not vitiate the trial.

It has been urged by the respondents that no second appeal lies from the decree of the Special Judge in appeals from decisions settling fair and equitable rents. In the present cases, however, the second appeals are not from decisions settling fair and equitable rents, but from decisions regarding the maintainability of the suits, and second appeals do lie from decisions of this nature.

The appeals must be allowed with costs. The decrees of the lower Appellate Court are set aside, and it is directed that the appeals be re heard by the learned Special Judge on the merits and be decided according unto law.

John Bucknill, J.

I agree.