Muhammad Amirul Hasan vs Muhammad Jewad Hussain and Another

Mullick, J.—This second apneal is preferred by the defendant No. 1 and relates to a question of mesne profits. The Mouzas Doma and Serambigha were given in mukarrari settlement by the Maharaja of Tikari to Mt. Nankho Saheba, who gave a darmukarrari to Nawab Syed Ali Hasan for his life on the 21st March, 1871. On the 23rd December, 1908, Nawab Ali Hasan gave to the defendant No. 1, Amirul Hasan, a thika lease for the years 1316 to 1327 F.S. which correspond to the years 1908 to 1919. Nawab Ali Hasan died on the 26th February, 1313. In the meantime, Nankho Saheba had also died and her daughters, Sultani Begum and Fikhrun Nisa Begum, had inherited a half share in the mukarrari and a rent decree was obtained by the Maharaja of Tikari in respect of this 8 annas share against them in execution of which their interest was sold at auction on the 17uh January, 1907 and purchased by the plaintiff, Jewad Hussain, in the name of his benamidar Muhammad Saduq. That sale was confirmed on the 8th August, 1909, and the present suit was brought by the plaintiff on the 17th January, 1919, against the defendant, Amirul Hasan, for possession of the thika property and for mesne profits from the year 1913 till the date of the suit. During the pendency of the suit the mukarrari again fell into arrears and was sold in execution of a decree for rent and was purchased on the 20th June, 1919, by the defendant himself.

Now the question is, what is the amount of mesne profits, if any, which the defendant is liable to nay to the plaintiff? The question of the right to possession no longer arises because by his purchase of the 20th June, 1919, the defendant has already acquired that right, The Subordinate Judge has found that the plaintiff is entitled to mesne profits for three years before the suit and be has given him a decree at the rate of Rs. 850 a year.

In appeal the District Judge has come to the same conclusion and the present) second appeal is preferred by the defendant, Amirul Hasan.

Now, the first contention is, that, as Jewad Hussain was himself one of the judgment-debtors in the suit against Suliani and Fakhrun Nissa at which he purchased the half share of the mukarrari, the sale was void under the terms of Section 173 of the Bengal Tenancy Act. That section, however, seems to mean that the sale is not void but voidable. Sub-clause (2) of the Section which prescribes that the judgment-debtor shall not bid for or purchase the tenure or holding is a direction to the Court prohibiting him from permitting the judgment-debtor to bid or to purchase-The consequences of a purchase without the knowledge of the Court and the action to be taken thereupon are set out in Sub-clause (3) and it seems clear that the sale remains valid till it is duly set aside. There is authority for this view in Gopal Chunder Mitra v. Ram Lal Goshain (1894) 21 Cal. 554, and no authority to the contrary has been shown to us.

Toe next question is, whether the tenancy of the thikadar Amirul Hasan was determined. The District, Judge finds as a fact that the decree-bolder did repudiate it and that Muhammad Sadiqi, the benamidar, attempted to take forcible possession of the share and was bound down by the Criminal Court at the instance of the defendant. It cannot, therefore, now be said that the defendant had no notice, that Muhammad Sadiq had determined the tenancy. It has been urged that the plaintiff himself never gave notice, but in my opinion Sadiq was at that time the benamidar of the plaintiff and his act was the act of the plaintiff.

The third point is, what is the amount at which mesne profits are to be assessed? The finding of the Subordinate Judge is that the gross produce of the thika property was Rs. 1,700 per year for the two entire mouzas, and that half of that amount, namely, Rs. 850, is a proper assessment per annum. The learned Judge agrees with this calculation and his finding is a finding of fact which cannot be reversed in second appeal.

The appeal is, therefore, dismissed with costs.

Bucknill, J.

I agree.