Srimati Tulsi Mahatani and Others vs Gajadhar Marwari and Others

Das, J.—This appeal arises out of a suit instituted by the appellants to set aside the sale of Mauza Bahardih in which they are interested. The Raja of Panchakoti is the superior landlord. It is not disputed that he granted certain Brahmottar rights in the village to one Bamsatya Goswami. The predecessor in title of the present plaintiffs took a lease from the successors in interest of Ram Satya Goswami. The plaintiffs also purchased a certain share of the interest of the Brahmottardar. On the 8bh April ''1916 the Baja of Panchakoti instituted & suit for the recovery of case as against the plaintiffs and recovered an exparte decree on the 28bh June 1916. On the 2nd April 1917 the mauza was sold in execution of the decree and was purchased by Defendant No. 1 for Rs. 1,000. It appears that one Babu Bhupati Mazumdar obtained a money decree as against Plaintiffs Nos. 1 and 4 and on the 15th September 1916, the share of Plaintiffs No. 1 and in the village and an a certain tank were put up for sale and was purchased by Defendant No. 2, The plaintiffs seek in this suit to set aside the sale of the 2nd April 1917 and that of the 15th September 1916.

It was the case of the plaintiffs in the Court below that Defendant No. 2 was the benamidar of Defendant No. 1 and it was in that view that one suit was allowed to be instituted in respect of the two sales.

The learned Subordinate Judge has found that Defendant No. 2 is not the benamidar of Defendant No. 1 he has also held on merits that the sale of the 5th September 1916 cannot be set aside. The decision or the learned Subordinate Judge on these points is accepted by the plaintiff, who are the appellants in this Court and we shall not refer any further to the sale of the 15th September 1916. In regard to the other sale, the learned Subordinate Judge has come to the conclusion that the plaintiffs have no merit and do not deserve any success in this Suit. In that view the learned Subordinate Judge has dismissed the plaintiffs'' suit.

We entirely agree with the view which has been taken by the learned Subordinate Judge. He has taken a great deal of trouble with the evidence and his judgment shows much industry and ability and as we entirely agree with his conclusion it will not be necessary for us to deal in detail with the various questions which have been raised before us.

The first question argued before us on behalfl of the appellants is that the suit being a suit for a recovery of cess, was not triable by the revenue Court, but it is obvious that under-Section 3 Clause (23) of the Chota Nagpur Tenancy Act, rent includes cess. Section 139 deals with the jurisdiction of the revenue Court to take cognizance of suits and it provides inter alia that all suits for arrears of rent on account of agricultural land whether subject to the payment of rent or only to the payment of dues which are recoverable as if they were rent shall be cognizable by the Deputy Commissioner and shall be instituted and tried or heard under the provisions of the Chota Nagpur Tenancy Act and shall not be cognizable in any other Court except as otherwise provided in the Act.

Now, as I have said rent includes cess, and it is obvious to my mind that Section 139, Clause (3) para, (a) clearly provides that a v suit for recovery of cess shall be cognizable by the Deputy Commissioner.

It was argued on behalf of the appellant that there is no evidence that the land in respect of which the suit for cess was brought was agricultural land. In my opinion the argument is an idle one and is not deserving of any success. I hold that the revenue Court had jurisdiction to try the suit.

It was next contended that although the suit may be regarded as a rent suit, still as certain persons interested in the tenure were not made parties to the suit, the decree for cess operated not as a rent decree but as a money decree.

It is pointed out that two persons interested in the tenure were not made parties to the suit for cess, Tulsi who is the widow of Jaichand and Radhanath, one of the two sons of Boul Das. I may mention here that this case was opened before us sometime last year, and on that occasion Mr. Atul Krishna Ray undertook to satisfy us that the plaintiffs were entitled to succeed on a very short point. His point then was that although Tulsi was the recorded tenant in the sherista of the landlord, she was not made a party to the rent suit and that, that being so, the decree obtained by the landlord could not operate as a rent decree. We, thereupon, remanded the case to the Court below to ascertain whether Tulsi was or was not recorded in the landlord''s sherista as a tenant. The learned Subordinate Judge has not returned his finding to the effect that Tulsi was not recorded in the landlord''s sherista as one of the tenants of the tenure, but that Majhia, the mother of Jaichand, was so recorded.

The finding is not challenged by Mr. Atul Krishna Bay but he contends that Majhia had no business to have her name recorded and that the landlord not having made Tulsi a party to the suit cannot claim that the decree obtained by him was a rent decree. It is admitted by the defendants that Tulsi was not made a parby to their own rent suit, it is also admitted that Badhanath one of the sons of Bonl Das, was not made a party. The question which we have now to decide is whether the fast that they were not made parties to the rent suit deprives the. landlord of regarding the decree obtained by him as a rent decree.

Section 11 of the Chota Nagpur Tenancy Act provides as follows:

When any tenure or a portion thereof is transferred by succession, inheritance, sale, gift or exchange, the transferee or his successor-in-title shall cause the transfer to be registered in the office of the landlord to whom the rent of the tenure or portion is payable.

We have in this case the undoubted fact that Manjhia and Bhushan (the elder brother of Radhanath) were recorded in the landlord''s sherista, but there is no evidence that either Tulsi or Radhanath made any application to have their names recorded and that the landlord disallowed their application. Previous rent suits were brought by landlords and in those rent suits Majhia and Bhusan (the elder brother of Badhanath) were parties and neither Tulsi nor Badhanath was a party. The question then arises whether in the circumstances of the present case we ought to hold that Majhia represented her branch of the family and that Bhushan represented his branch of the family.

Mr. Atul Krishna Ray relied upon a decision of the Calcutta High Court in Faijunnessa v. Gaganeshwari AIR 1921 Cal. 434. That, however, was an entirely different case. In that case the recorded tenant died leaving certain persons as his heirs. None of the heirs applied to have his-name registered in the landlord''s sherigta under the provisions of the Bengal Tenancy Act, and it was found by the High Court that the landlord chose to recognize only one of the heirs and brought a rent suit as against that heir. On those facts the Calcutta High Court had no difficulty in coming to the conclusion that the tenant who was actually sued could not be regarded as having represented his coheirs. As I have said, the case cited was an entirely different case.

In the present case Majhia, the widow of Sridhar, who at one time was undoubtedly one of the tenants, did; make an application to have her name registered, whereas Tulsi, the daughter-in-law of Majhia, did not apply to have her name registered.

Coming to the branch of Boul Das, the father of Bhushan and Badhanath, we find that Bhushan had applied to have his name registered whereas Badhanabh did not so apply. In these circumstances, and having regard to the fact that previous rent suits were allowed to be brought without any objection or opposition as against Majhia and Bhushan in which rent suits Tulsi and Badhanath were not made defendants, I must hold that Majhia sufficiently represented her branch and that Bhushan sufficiently, represented his branch in the suits.

The result is that the decree obtained by the landlord must be regarded as a rent decree.

It was nest argued that although the decree may be regarded as a rent decree, it has still to be considered what property passed under the sale.

Now section 208 of the Chota Nagpur Tenancy Act provided as follows:

When a decree passed by the Deputy Commissioner under this Act is for an arrear of rent. due in respect of a tenure or holding the decree-holder may apply for the sale of such tenure or holding and the tenure or holding may thereupon be brought to sale, in execution of the decree, according to the provisions for the sale of under-tenures contained in the Bengal Rent Recovery (Under-tenures) Act 1865, and all the provisions of that Act, except Sections 12, 13, 14 and 15 thereof, shall as far as may be, apply to such sale : Provided that the purchaser of a tenure at any such sale shall not be entitled to annul any lease, right or tenancy referred to in Clauses (a) to (e) of Section 14 of this Act.

It is not necessary to cite the other provisions contained in Section 208 as no reliance is placed on them by Mr. Atul Krishna Ray. It is obvious, therefore, that Section 16 of the Bengal Bent Recovery Act of 1865 does apply to the sale in this case. Now that section provides as follows:

The purchaser of an under-tenure sold under this Act shall acquire it free from all incumbrances which may have accrued thereon by any act or any holder of the said under-tenure, his representatives or assignees, unless the right of making such incumbrances shall have been expressly vested is the holder by the written engagement under which the under-tenure was created or by the subsequent written authority of the person who created it, his representatives or assignees.

It follows, therefore, that the purchaser has acquired the property free from all incumbrances unless the present case comes within the proviso to Section 16 which is follows:

Provided that nothing herein contained shall be held to entitle the purchaser to eject khudkasht raiyats or resident and hereditary cultivators, nor to cancel bona fide engagements made with such class of raiyats or cultivators aforesaid by the late incumbent of the under-tenure or his representatives except it be proved in a regular suit, to be brought by such purchaser for the adjustment of his rent that a higher rent "would have been demandable at the time such engagements were contracted by his predecessor.

A faint attempt was made by Mr. Atul Krishna Ray to bring his case within the proviso to Section 16 of the Bengal Rent Recovery Act 1865, but there is no proof whatever that his clients are khudkasht raiyats or resident and hereditary cultivators or that they hold under bona fide engaments as such raiyats.

The next point is whether the case has been brought within the proviso to Section 14 of the Chota Nagpur Tenancy Act. That section undoubtedly protects any right of a raiyat or cultivator in his -holding or land, as conferred by the Ghota Nagpur Tenancy Act or by any local custom or usage. It was strongly contended that at any rate in respect of one rekha of land known as Jhara Rekha and two tanks the plaintiffs appellants have the rights of raiyats and that therefore this rekha of land and these two tanks are protected from the sale.

The question of fact raised in this argument has been discussed very fully and elaborately by the learned Subordinate Judge, and I see no good reason for differing from the learned Subordinate Judge in the conclusion at which he has arrived. It is succulent to say that one of the documents in the record (Exhibit M) completely disposes of the case.

So far as the two tanks are concerned, the judgment itself shows that the plaintiffs have no raiyati interest in those two tanks. So far as the one rekha of land known as the Jharna Rekha is concerned Exhibit M shows that Boul Das purchased that land as a co-sharer proprietor from an occupancy tenant. Bhoul Das represented the whole body of the Mahathas in the transaction and Exhibit M shows that upon such purchase Boul Das held the land paying proportionate rent to his casharers and that this land was allotted to Boul Das in the partition which was effected by the judgment in the partition suit. That judgment in the partition suit shows that this land was allotted to Boul Das in the partition.

Now it is obvious that a co-sharer landlord purchasing a holding in execution of a rent decree does not acquire the right of an occupancy tenant. It is quite true that he has to pay a proportionate share of rent to his cosharer landlords, but his interest is not that of a tenant. Section 20 of the Chota Nagpur Tenancy Act makes this position perfectly clear, but whatever the position may have been at the date when Boul Das purchased the occupancy holding, his position was entirely different when this land was allotted to him in the partition which took place thereafter. The whole interest of the tenant and the whole interest of the landlord merged in Boul Das, and in my opinion it is impossible to take the view that after the partition Boul Das continued to hold the land as his under-tenant. In my opinion the plaintiffs have not established that they have any jamai rights or occupancy rights in the village.

It was lastly contended that the sale held in pursuance of the decree for cess operated to transfer only the right, title and interest of the judgment-debtors and a decision of the Calcutta High Court in Mohanand Chuckerburty v. Banimadhab Chatterjee [1897] 24 Cal. 27. was relied upon in support of this proposition. But the Cess Act itself provides that provided certain formalities are adopted the decree in a suit for cess operates as a rent decree. A decision of this Court in Pitamber Chowdhry v. Shaikh Rahmat Ali AIR 1922 Pat 303 is a clear authority for this proposition.

Now this point was not raised in the Court below and the appellants could not complain if there are no materials in the record to enable us to decide ''whether these necessary formalities were or were not taken but fortunately the materials in the record establish that these essential formalities were in fact adopted in the rent suit. That being so, decision of this Court in the case just cited is a clear authority in support of the view that that decree must be regarded as a rent decree.

I would dismiss this appeal with costs.

Adami, J.

I agree.