Paghalan Garain and Others vs Chotu Kunja

Jwala Prasad, J.—This is an application against the decision of the Deputy Commissioner of Dhanbad, dated the 14th April, 1923, whereby he sat aside the decree made by the Deputy Collector, dated the 5bh February, 1923, in a rent suit instituted by the petitioners. The suit for rent was for the years 1327 and 1328.

The plaintiffs purchased the interest of one Sarda Prasad Tewari in the mouza in execution of a mortgage decree and obtained possession of the property through Court. Sarda Prasad was himself a mortgagee from one Nityamani Debya, widow of Pursottam Eai. The interest purchased by the plaintiffs was the Brahmotar right held by Pursottam Eai in this village. The defendants are tenants in that mouza and plead payment of rent to an Ijardar of the Zemindar of the mouza upon the ground that the Zamindar had resumed the Brahmotar right and himself became Sebaith from 1317 or 1912, and that sincO then he has been in possession through his own Ijardars.

The Deputy Collector, who tried that suit, held that the payment of rent, if any made to the Ijaradar was not in good faith. The Ijaradar has been examined in thi0 case in support of the plea taken by the defendants. Accordingly, the Deputy Collector decreed the suit of the plaintiffs.

The Deputy Commissioner in appeal held that the question raised by the defendants was one of title, and consequently was not within the competency of the revenue Court to decide. He, however, was of opinion that the question raised by the defendants should have been taken to the Civil Court not by them but by the plaintiffs, and consequently he dismissed the suit. He has referred to the objection of the petitioners before him as to his being competent to entertain the appeal, inasmuch as th0 suit raised a question of title the decision whereupon of the Deputy Commissioned was not final, and consequently no appeal lay to the Deputy Commissioner from the decision of the Deputy Collector u/s 218, Clause (2). This question the Deputy Commissioner found to be a little complicated, and therefore has not give0 his definite opinion; none the less he has tried the appeal and disposed of it by setting aside the decree made by the Deputy Collector.

It appears to me that the procedure adopted in the trial of the suit has contravened the provisions of Section 177 of the Chota Nagpur Tenancy Act. That Section lays down that when the claim of third person to receive rent i3 pleaded, that third person should be made a party to the suit and the plea must be decided in his presence. This view was upheld in Sunder Roy v. Hema Mahton (1917) 2 P.L.J. 386 decided by this Court. The facts of that case are largely similar to the present one and upon a plea similar to that taken in the present case it was held that the intervener was a necessary party. That case was decided in 1917. Since then the law has been made still more stringent by the amendment of Section 177 of the Chota Nagpur Tenancy Act in 1920. Before the amendment the words were:

the right to receive the rent of the land "or tenure cultivated or held by the tenant "is disputed, and such right is claimed by "or on behalf of a third person on the "ground that such third person, or a person "through whom be claims, has actually and "in good faith received and enjoyed such "rent before and up to the time of the "institution of the suit.

Such third person shall be made a party "to the suit, and the question of the "actual payment of the rent to such third "person in good faith shall be inquired into "and the suit shall be decided according to "the result of such inquiry.

For the words "the right to receive. * * "third person," the following words have now been substituted "tenant or a third "person pleads that the right to receive "the rent of the land or tenure cultivated or "held by the tenant belongs to such third "person." The plea therefore may be taken by the tenant or a third person. In each case the person on whose behalf the title is set up must be made a party.

The result is that the entire proceedings in this case being ultra vires after the institution of the suit are set aside, and the case is therefore remanded, to be tried de novo after making the third persons on whose behalf the tenants raised the plea, parties to the case.

In the result the application is allowed, the costs will abide the result.