Rubiun-Nessa vs Gooljan Bibee and Others

W. Comer Petheram, C.J.—This is a suit which was brought in consequence of money having been paid into Court by a tenant u/s 149 of the Bengal Tenancy Act. One of the defendants to the present suit sued a ryot to recover some rent. The ryot stated that the rent was claimed by the present plaintiff, and paid the amount into Court u/s 149. When that was done, the plaintiff brought the present suit against the defendants to establish her right to the land in respect of which she said that the rent was payable to her.

The matter came before the Munsif. He went into the matter and decreed the plaintiff''s claim. The defendants appealed to the Subordinate Judge, and the Subordinate Judge has dismissed the plaintiff''s suit, not because he found that the plaintiff was not entitled to the rent as an incident to the title to the land, but because ho says you have not proved that you had been in possession in the sense that you were getting this rent from these tenants for the last five years, and he refused to go into the question of title at all, relying upon the case of Jagadamba Devi v. Protap Ghose ILR Cal 537.

In that case the Judges held, for the purposes of stamp duty, that that was not a title suit, and that was all they held. That, no doubt, was a suit which was brought to determine which of two parties was entitled to the money paid into Court under that section; but we do not know what the form of that suit was, or in fact anything more than that the Judges considered that the suit was not a title suit. That does not determine that no suit which is brought under circumstances such as these can be a title suit, or that the plaintiffs in a suit to establish their right where the matter has come into dispute by reason of another rent suit, and of the money having been paid into Court, may not go into their title. It seems clear to me that the object of Section 149 was to prevent tenants being harassed where disputes arise between rival claimants to the land in respect of which the rent is due, and consequently whether the dispute between such parties is a dispute as to title, or a dispute as to possession only, they are at liberty to have that tried, and in the suit in which that is being tried to obtain the injunction which is mentioned in Sub-section 3 of Section 149 of the Bengal Tenancy Act.

For these reasons we think that the Subordinate Judge was wrong in the view which he took of this case and that the case must be remitted to him for him to consider the matter in all its bearings, and, having regard to title as well as to possession, determine whether the plaintiff or the defendants in the present suit are entitled to this sum of money which has been paid into Court by the tenants.

The costs will abide the result.