Mati Lal Poddar vs Nripendra Nath Ray Chowdhury and others

This is a sail for arrears of rent of some homestead land. The parties are at issue as to the amount of rent payable. The Plaintiff says the rent payable by the Defendant is 1-10 p.a. The Defendant says it is 1-2. The lower Appellate Court has given the Plaintiff a decree at the rate claimed by him. The Defendant appeals and contends that the lower Appellate Court was in error in admitting in evidence a decree obtained by the Plaintiff against the Defendant''s brother Kedar Nath Poddar for the rent of this land. He says that the suit being one for the rent of homestead land is not one under the Bengal Tenancy Act, that therefore the decree obtained against the Defendant''s brother, Kedar Nath Poddar, was a personal decree, and though he was a registered tenant of the land, the decree in no way binds the Defendant. Finally, he urges that the decree was an ex parte one. The Respondent, on the other hand, points to the fact that his client has obtained a decree for damages at 25 p.c., and that such a decree can only be passed under the provisions of the Tenancy Act But because such a decree has been given under the erroneous impression that the provisions of the Tenancy Act are applicable to the case, it does not follow that the provisions of that Act are applicable, or that the suit is one under the Tenancy Act.

However this may be, though the decree which the Subordinate Judge has admitted in evidence in the case is one which is, strictly speaking, not inter partes, still I am unable to say that the subordinate Judge was wrong in admitting it into evidence and allowing it to have some weight with him.

The Subordinate Judge finds that the Defendant''s elder brother Kedar Nath Poddar was the registered tenant, and that the Defendant allowed his brother to represent him in the tenancy, the dakhilas for the rent being admittedly issued in the name of his brother only. It may therefore, I think, be held that Defendant is equitably estopped from denying that this decree is evidence against him, and the decree, though an ex-parte one, was executed, and, therefore, is some evidence; [see Madhu Munjari Chowdhurani Vs. Jhumar Babi ]. Finally, I may say that the decree is not the only thing on which the Subordinate Judge has based his judgment, thought no doubt, it has influenced him much in inducing him to give the Plaintiff a decree at the rate claimed by him. I therefore dismiss this appeal with costs.