Mohammad Hasim Khan and Others vs Gaya Rai and Others

Adami, J.—In the suit out of which this second appeal arises, the plaintiffs sought for a declaration that a certain raiyati holding had been purchased by them at a sale in execution of a rent decree and that a decree subsequently obtained by defendants 3 to 8 against defendant 1 was a nullity and that the sale of the holding in execution of that decree should be set aside.

It appears that one Pechulal formerly held a 13-annas 4-pies share in village Deoria. The remaining share was entered in Register D as belonging to Sheolagan Sahu. Defendant 1 was the raiyat of the holding under Bechulal. In 1908, Bochulal instituted a suit for arrears of rent from 1312 to the 4-annas kist of 1315 against defendant 1 and obtained a decree. In execution the holding was bought by the plaintiffs on the 4th September 1911. In that suit, Sheolagan the recorded cosharer malik, was made a party defendant. The sale was confirmed and the plaintiffs were put in possession by the Court.

According to the plaintiffs, on getting possession, they settled the land with defendant 1 and other tenants. In 1914 Bechulal sold his interest in the entire mauza to defendants 3 to 8 Thereafter defendants 3 to 8 instituted a suit against defendant 1 for the rent of the holding without making the plaintiffs parties and obtained a decree. After, the decree was obtained, and when defendants 3 to 8 sought to execute that decree the plaintiffs instituted the present suit claiming that they had obtained possession by a sale in execution of a rent decree, and that, therefore, the subsequent suit and the decree against defendant 1 could have no validity,. The Court below has found that the suit brought by Beehulal against defendant 1 in 1908 was a rent suit and that the decree obtained was a rent-decree. It has been found that Sheolagan, although shown in Register D as holding a 2-annas 8-pies share, was in reality merely a benamidar of Bechulal and that at the time of the suit Bechulal had a 16-annas interest in the village. It has been found further that the plaintiffs were in possession after their purchase through defendant 1, what is their own tenant and, other tenants, one of whom was Nepal Ral, who was examined as a witness in the case.

The learned Subordinate Judge holds that defendants 3 to 8 having stepped into the shoes of Bechulal, their predecessor-in-title, they could no more deny the right of the plaintiffs than could Bechulal have done. He upheld the Munsif''s finding that defendant 1 had knowledge of the suit and decree obtained by Bechulal and also of the execution proceedings, and defendant 1 had not taken any steps to appeal against the decree obtained against him in the suit in 1908. The learned Subordinate Judge found that the decree obtained by defendants 3 to 8 against defendant 1 was a nullity and could not affect the right and title of the plaintiffs. He, therefore, allowed the plaintiffs'' suit.

The points taken on behalf of the present appellants, defendants 3 to 8, are firstly, that the decree obtained by Bechulal against defendant 1 was not a rent-decree, but simply passed the right, title and interest of defendant 1 so that the sale to the plaintiffs could not have priority over the sale to defendants 3 to 8 which was a sale in execution of a rent-decree. Secondly, it is argued that after their purchase in 1911 the plaintiffs had allowed defendant 1 to remain in possession of the land and were, therefore, estopped from denying the defendants'' title by virtue of the purchase in execution of the rent-decree.

Now with regard to the first point, the difficulty is that the plaint in the suit in 1908 has not been produced. We do not know how it was framed and what reliefs were prayed for ; we only know that the decree was drawn up as a rent-decree and that in that decree Bechu''s claim for 13-annas 4-pies of the rent was allowed.

It is contended that to bring a suit u/s 148-A, Bengal Tenancy Act, it is necessary for a cosharer landlord to make his cosharers parties and to state that the whole rent was due and to claim his share therein.. The whole rent must be claimed on behalf of all the landlords. In the present case it is argued that the decree showed that Bechulal claimed only his share and he claimed as a fractional landlord.

The learned Subordinate Judge, who heard the appeal in the first instance and then remanded the case for a decision on the question whether Sheolagan was a benamidar of Bechulal, came to the conclusion that Bechulal''s decree was not a rent-decree because, whereas the rent for four years would amount to Rs. 52, the decree was for Rs. 22 only, and4he argued that Bechulal must have sued for his share only. Now, if Bechulal had a 13-annas 4-pies share, the amount due as his share out of Rs. 52 would have been far more than Rs. 22. It is quite evident that some allowance was made for part payment. It is not possible to contend that the decree shows that his share only was claimed.

As I have said, it is impossible to say what exactly was the form in the plaint in the suit; we know that the recorded cosharer was made a party defendant, and we know also that, as a matter of fact, at the time Bechulal was really the sole landlord. It is impossible to argue, without reference to the plaint, that the suit was so drawn up that a rent-decree could not be passed, but only a money-decree. Knowing that the decree was executed as a rent-decree, it must, I think, be presumed that the plaint was drawn up in such manner as to warrant a rent-decree and all was properly done. Some doubt might arise if we had the plaint before us and found that Bechulal, though he had made his cosharer a party defendant, had only claimed, as a cosharer landlord, his 13-annas 4-pies share without making a claim for the entire rent and then asking that his share out of it should be paid to him.

The lower Court has found that Bechulal was the sole landlord and got a decree for his rent. If cannot be held that all the landlords were not on the record of the suit.

The second question, that of estoppel has been argued in the trial Court, but has not been specifically dealt with in the appellate Court. The point taken by the learned Counsel for the appellants is that, even if the purchase by the plaintiffs was a real and valid one, they slept over their rights and failed to get their names registered in the malik''s sherista, they never paid rent to the landlord or deposited the rent in Court, but allowed defendant 1, the old tenant, to remain on the land as a recorded tenant and thus the principle of estoppel by sufferance applies.

The learned Munsif who first heard the case examined this contention and held that the defendants failed to prove that the plaintiffs made any representation to them or that the defendants relying on the representation had changed their position and, therefore, there could be no estoppel.

Before me it is argued that though there may be no estoppel u/s 115 or u/s 43, Transfer of Property Act, still the principle of those sections should be applied. The name of defendant 1 has been allowed to remain in the landlord''s sherista and the plaintiffs have not themselves been in possession, but have left defendant 1 in possession, and, therefore, there was no means for defendants 3 to 8 to know that the plaintiffs were really the tenants of the land.

With regard to the payment of rent we have no finding in any of the judgments of the Courts below that rent was paid either by the plaintiffs or defendant 1. It is not denied that defendant l''s name alone was recorded in the landlord''s sherista and that defendant 1 was the recorded tenant in the Record-of-Rights. But the point is that it is found that the plaintiffs did, in fact, settle the land with defendant 1 and with the other tenant Nepal Rai, and this settlement with Nepal Rai would show that defendant 1 was allowed to continue in possession of the entire, holding after the sale. Furthermore, Bechulal brought the holding to sale and was cognizant of the fact that the holding had been sold to the plaintiffs. Having this knowledge it was monument on the landlord to make a correction in his sherista and substitute the name of the plaintiffs for that of defendant 1.

Furthermore, it would not have been competent to Bechulal to deny the validity of the sale to the plaintiffs, and defendants 3 to 8, who stepped into the shoes of Bechulal as his vendees, have no more right to contest the sale than Bechulal would have had. The plaintiffs did nothing to lead either Bechulal or his successors-in-interest to believe that defendant 1 was still the tenant of the landlord.

On the findings of fact come to by the learned Subordinate Judge he was quite correct in dismissing the appeal.

The plaintiffs were in no way estopped from asserting their rights under their purchase at the sale in execution of a rent-decree. The appeal must be dismissed with costs.