Sarup Sahu vs Jagarnath Modi

Chapman, J.—This appeal arises out of a suit on a mortgage-bond of the year 1308. The property mortgaged was a holding. There had been a decree obtained for the rent of the holding prior to the mortgage suit. The holding had been sold in execution of that decree and had been purchased by the landlord. The question was whether the sale of the holding in execution of this rent-decree resulted in the annulment of the mortgage. The decree for rent was obtained for the years 1313, 1314, 1315 and 1316. In the year 1314 there had been a partition and the holding had been allotted to the separate patti of the persons who were the plaintiffs in that rent suit. Prior to the partition the plaintiffs in that rent suit had been only co-sharer landlords and they did not in their suit implead the other co-sharers. It has been contended that inasmuch as part of the claim in that rent suit was in respect of a period for which the plaintiffs were only co sharer landlords, the decree was only a money-decree and Section 158B of the Tenancy Act has no application. Section 158B, however, provides that the holding shall pass to the purchaser, provided that the decree in execution for which it has been sold has been obtained by a sole landlord. I am of opinion that in this case the decree in execution of which the holding was sold was obtained by sole landlords and Section 158B applies, although the period for which the rent was decreed included a period for which the plaintiffs were only co-sharer landlords. At the time when they obtained their decree they were the sole landlords, and, in my opinion, that is sufficient for the purposes of the section. The same principle was applied with reference to another provision of the Act by the Calcutta High Court in a Full Bench case of Khetra Pal Singh v. Kritarhamoyi Dassi 10 C.W.N. 547 ; 3 C.L.J. 470 ; 33 C. 566.

The other ground taken in appeal is that the learned District Judge has come to no finding that the encumbrance was annulled within the periord of one year allowed by section 167 of the Bengal Tenancy Act. In the first Court there was a finding that the mortgage had come to the knowledge of the landlords more than a year prior to the application for notice of annulment, but this finding was based upon the finding that the rent suit was collusive. The finding that the rent suit was collusive was reversed by the learned District Judge. There, therefore, remained no foundation for holding that the landlords came to know of the mortgage more than a year before the application for notice of annulment and, in my opinion, the burden lay upon the mortgagee to prove that the application for annulment was barred by the terms of Section 167. These were the only two points argued before us and as both points fail I would dismiss the appeal with costs.

Roe, J.

I agree.