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Suratan Bibi W/O KhabiruddIn Biswas and ors. Vs. Lutu Gopal Bhattacharya and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1943Cal51
AppellantSuratan Bibi W/O KhabiruddIn Biswas and ors.
RespondentLutu Gopal Bhattacharya and ors.
Excerpt:
- .....2 and 3. on these facts, the main question is whether the decree obtained by the landlord was a rent decree under the bengal tenancy act, or a mere decree for money. both courts have answered the question in favour of the landlord, and necessarily in favour of defendants 2 and 3 as well. they have held that the two sons of azizulla represented the tenancy in the rent suit. if that finding stands, mr. chatterjee for the appellants concedes that that is an end of his clients' case.2. i see no ground for interfering with this finding in second appeal. under sub-section (1) of section 146a, bengal tenancy act, a decree for rent may be valid against all co-tenants, whether they are made parties defendants or not, and a sale in execution of such decree will also be valid against the.....
Judgment:

Biswas, J.

1. The plaintiffs are the appellants before me. They lost in both the Courts below and must also lose here. The suit was one for declaration of their title to a certain fractional share in a raiyati holding and fop recovery of possession. Their case was that the holding originally belonged to their father one Azizullah Mandal, and that on his death, they inherited it as his daughters jointly with their brothers. In suing for rent of the holding, the landlord, defendant 1, however, left out the plaintiffs and impleaded only the two sons of Aziznlla, defendants 4 and 5, as parties. In due course the landlord obtained a decree and purchased the holding himself at the execution sale which followed. He thereafter settled the holding with defendants 2 and 3. On these facts, the main question is whether the decree obtained by the landlord was a rent decree under the Bengal Tenancy Act, or a mere decree for money. Both Courts have answered the question in favour of the landlord, and necessarily in favour of defendants 2 and 3 as well. They have held that the two sons of Azizulla represented the tenancy in the rent suit. If that finding stands, Mr. Chatterjee for the appellants concedes that that is an end of his clients' case.

2. I see no ground for interfering with this finding in second appeal. Under Sub-section (1) of Section 146A, Bengal Tenancy Act, a decree for rent may be valid against all co-tenants, whether they are made parties defendants or not, and a sale in execution of such decree will also be valid against the tenancy, if the defendants in the suit represent the entire body of cosharer tenants. The question of representation is one of fact, and must depend on the particular circumstances of each case. The Courts below here found that on the death of Azizulla his two sons alone paid rent, and that they alone were in possession, and it was open to the Courts from these facts to hold that these two persons fully represented the tenancy. There appears to exist some confused thinking as to the true scope and effect of Section H6A, Bengal Tenancy Act, as if the doctrine of representation in rent suits rested solely on this statutory provision, or that representation could not be established unless it was shown that the landlord had joined as defendants in his suit all the persons mentioned in the various clauses of Sub-section (3) of this section. A plain reading of the section does not seem to support this view.

3. It is true that the categories of cosharer tenants referred to in the different clauses of Sub-section (3) are all persons about whose existence the landlord could not very well plead ignorance, and normally no doubt the landlord will be expected to implead all such persons who, to his knowledge or information, may have an interest in the tenancy. Thus, it may be said that there can be no excuse for the landlord leaving out of his suit any cosharer tenants who may be residing in the village in which the tenure or holding is situated (Clause (i)), or from whom he may have actually received rent at any time during the three previous years (Clause (ii)), or who may have served on him notice of the acquisition of an interest in the tenancy by purchase or inheritance (Clause (iii)), or whose names are in fact borne on his own rent-roll (Clause (iv)).

4. All the same, on the wording of Sub-section (3) as it stands, it appears to me to enact no more than this that if the defendants in the suit include all such persons, then the entire ! body of cosharer tenants shall be deemed to be represented by them, or in other words, that in that case there will be an irrebuttable presumption that the entire tenancy has been represented in the suit. It is, however, one thing to say that if all these persons are joined as defendants, this alone without more will be sufficient to establish representation, it is quite a different proposition to say that the non-joinder of any such persons or of any other persons having an interest in the tenancy will by itself negative representation. I see no reason why, apart from the provisions of this sub-section, it may not be still open to a party interested to show that in point of fact the entire tenancy was represented in the suit by the persons who were actually joined as defendants. It is not necessary to pursue the matter further for the purpose of this appeal, for, on the findings arrived at by the Courts below in the present case, it must be held that in making defendants 4 and 5 the sole defendants in his rent suit, the landlord did no more and no less than he could have done, and it is not J shown that any persons coming within any of the categories of Sub-section (3) had been left out. The result is that this appeal fails, and is dismissed with costs.


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