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Mt. Khayerunnessa Bibi and anr. Vs. Fazar Ali Sarkar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal25,97Ind.Cas.755
AppellantMt. Khayerunnessa Bibi and anr.
RespondentFazar Ali Sarkar and ors.
Cases ReferredRajani Kant Guho v. Srimutty
Excerpt:
- .....ever, held that the decree in execution of which the property was purchased by fazaruddin was a rent-decree and by this decree the holding itself passed. in this view of the case he decreed the appeal and entirely dismissed the plaintiff's suit.4. the plaintiff has appealed to this court. on her behalf mr. pakrasi contends first of all that the decree in execution of which fazaruddin purchased the property was not a rent-decree as contemplated by the bengal tenancy act, but was merely a money-decree and that nothing more passed by the sale than the right, title and interest of baramdi the other co-sharer. that the plaintiff's 4 annas share did not pass by the sale. in support of his contention he relies on the evidence of the record-of-rights in which the plaintiff is shown as the.....
Judgment:

Cuming, J.

1. In the suit out of which this appeal has arisen the plaintiff sued to recover khas possession of some three plots of land set forth in the schedule to the plaint after declaration of her title thereto. Her case was that the lands in suit together with some other lands formed the raiyati jote of one Arashali Prodhan who was the great-grandfather of the plaintiff. Arashali died leaving behind him four sons, Manik, Baramdi, Nandoo and Sonaulla. Nandoo and Sonaulla died childless and so the jote came into possession of the plaintiff's grandfather Manik and his brother Baramdi. Manik died and was succeeded by his son Azim. There was a private partition between Baramdi and Azim by which Azim got possession of the three disputed plots of land whereas Baramdi got the other plots. On the death of the plaintiff's father Azim the plaintiff came into possession as heir and was in possession of the disputed lands till Bhadra 1326 when she was dispossessed by the defendants and hence this suit.

2. Defendants Nos. 1 to 6 contested the suit. Their contention first of all was that the plaintiff had no title to the land because Azim predeceased his father Manik. Further they alleged that the holding in question was sold in execution of a decree for rent obtained against Baramdi and that as Baramdi was the only recorded tenant in the landlord's sherista the entire holding passed and this holding was purchased by Defendant No. 1 Fazaruddki. There was also a further plea of the bar of limitation.

3. The learned Munsif found in favour of the plaintiff and gave her a decree for khas possession of Survey Plots Nos. 1043 and 1045 and of the eastern and southern one pakhi of Survey Plot No. 1044. He further ordered that she would possess these plots exclusively in her 4 annas share in the entire jote. The learned Munsif also found that Azim did not predecease his father Manik. He further found that the suit was not barred by limitation. The defendants appealed to the District Court and the learned Subordinate Judge who had heard the appeal held that Azim did not predecease Manik. He, therefore, held that the plaintiff had title to the land. He, how ever, held that the decree in execution of which the property was purchased by Fazaruddin was a rent-decree and by this decree the holding itself passed. In this view of the case he decreed the appeal and entirely dismissed the plaintiff's suit.

4. The plaintiff has appealed to this Court. On her behalf Mr. Pakrasi contends first of all that the decree in execution of which Fazaruddin purchased the property was not a rent-decree as contemplated by the Bengal Tenancy Act, but was merely a money-decree and that nothing more passed by the sale than the right, title and interest of Baramdi the other co-sharer. That the plaintiff's 4 annas share did not pass by the sale. In support of his contention he relies on the evidence of the record-of-rights in which the plaintiff is shown as the holder of 4-annas share in this holding. Mr. Pakrasi contends that it is not sufficient that the landlord should bring a suit against the recorded tenant only. If it is within his knowledge, and, the learned vakil contends that it was within his knowledge that there are other cosharers in the holding it is not sufficient for him to bring the suit against the recorded tenants only but he must bring the suit against all the tenants. Mr. Talukdar who appears for the respondents contends that it is sufficient for the landord in order to obtain a decree for rent to bring his suit against the recorded tenant only. He contends that the other tenants would be estopped from setting up their title having allowed the recorded tenant to hold himself out as the sole owner of the tenancy. In support of his contention he has referred us to the case of Profulla Kumar Sen v. Salimullah Bahadur [1919] 28 C.W.N. 590. Looking at the facts of that case I do not think it can really be considered as an authority for the proposition that Mr. Talukdar would ask, us to accept.' The facts of that case are these : One of the tenants of the holding for 17 years never attempted to get his name registered in the landlord's sherista. He never asserted his right as a tenant and had never paid any rent. In those particular circumstances the learned Judges held that in such a case he was not entitled to recover possession of his share in the tenancy. In that particular case the whole tenure had passed by a sale in execution of a decree against only the recorded tenant. On the other hand, we have the case of Ashok Bhuiyan v. Karim Bepari [1905] 9 C.W.N. 843 on which Mr. Pakrasi relies where the learned Judges held that there was no law which rendered it obligatory upon the tenants who were not tenure-holders to get their names recorded in the landlord's sherista and, therefore, a sale of a jote in execution of a decree for rent obtained against the recorded tenant only did not pass the interest of a tenant whose name was not recorded in the landlord's sherista. Further in the case of Jag attar a Dassya v. Daulati Beiua [1910] 37 Cal. 75 having special reference to page 80 (of 37 C.) the learned Judges remarked as follows:

He is also, we think, mistaken in saying that the case of Rajani Kant Guho v. Srimutty-Uzir Bibi [1902] 7 C.W.N. 170 'enunciates the principle that the landlord is not bound to look beyond his record.' The question under the present law is always one of fact, whether the recorded toriant represents the holding or not,

5. In the present case the landlord has only to look to the record-of-rights to see that Baramdi was not the sole tenant of the holding but that the plaintiff had an interest to the extent of & annas. In the present case, therefore, we are of opinion that the landlord was not entitled only to sue Baramdi and that in order to obtain a rent-decree as contemplated by the Bengal Tenancy Act he was bound to have included the name of the plaintiff whose name appears in the Settlement Record which information was available to the landlord himself. We are, therefore, of opinion that the decree in execution of which Fazaruddin purchased the property was not a rent-decree and that nothing more passed by the sale excepting the right, title and! interest of Baramdi and that the interest of the plaintiff did not pass.

6. Mr. Talukdar has raised an objection that if we find against him and hold that the decree under which Fazaruddin purchased was not a rent-decree the plaintiff or rather her representatives-in-interest for she is now dead, are not entitled to khas possession. His contention is as follows: Khayerunnessa, the plaintiff, died during the pendency of the appeal and under the order of the Court her mother and her husband were substituted as her legal representatives. Mr. Talukdar contends that these two-persons are not her only legal representatives but that there are two uncles by the name of Nazir Mnhammad Paloan and Ahadi Paloan and in support of this contention has filed an affidavit. Now it would appear from the record that on the 5th March an application was made by the heirs of the deceased appellant Khyerunnessa, namely, her mother and] her husband, for the substitution of their names in her place and this substitution was allowed. In accordance with the practice of this Court this substitution was made without notice to the respondents. Be that as it may this substitution would be considered as binding unless it is set aside by a proper and appropriate order. It was open to the respondents to have moved this Court to vacate this order on the ground that there were other heirs of Khayerunnessa, who would be entitled to be substituted. Not, however, having done this, this order must be held as binding1 so far as this appeal is concerned.

7. The result, therefore, is, the appeal must succeed. The decree of the lower appellate Court is set aside and that of the trial Court restored. The appellants are entitled to their costs both here and in the lower appellate Court.

Page, J.

8. I agree. It is not the law that a landlord in every case is entitled to regard as his tenants only those persons whose names are recorded as such in his sherista, and to disregard the interest of co-sharer tenants whose names are not so recorded. Whether or not he may do so depends upon the circumstances of each case. It often happens, of course, that co-sharer tenants permit one of the co-sharers to represent them all visa vis the landlord with respect to the tenure, and allow his name to be recorded as representing the interest of all the co-sharers. In such a case, no doubt, the landlord is entitled to regard the recorded tenant as the sole person to whom he need apply for the rent due, as representing the tenure. It is a question of fact in each case. Under the circumstances of this case I agree that the plaintiff's interest in the tenure did not pass by the sale.


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