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Rama Nath Parui Vs. Harish Chandra Biswas and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal347,108Ind.Cas.41
AppellantRama Nath Parui
RespondentHarish Chandra Biswas and anr.
Cases Referred and Gangamani Biswas v. Raba Ali
Excerpt:
- .....first that he was the 41/2-annas shareholder and that the remaining ll1/2-annas belonged to his cosharer landlords. he further overruled that he and his cosharer landlord realized their respective portion of the rent separately. he then, stated that the defendant occupies some 6 bighas 12 cottahs odd land of which the total annual rent was rs. 14-7-101/2 gandas further he stated that the cosharer landlords, nos 2 to 6, were asked to join in the suit but they refused, that they were asked to state how much rent was due to them from the tenant and the tenant was also asked to state how much rent was due to the cosharer landlords but they refused to state. hence the plaintiff was entitled to get a decree for his share of the rent under section 148-a, ben. ten. act. it was then stated.....
Judgment:

Cuming, J.

1. In the suit out of which this appeal has arisen the plaintiff sued for a declaration of his title and confirmation of possession or in the alternative for recovery of possession of the land in suit.

2. His case briefly was that the disputed lands were held by one Hem Chandra Paehal, defendant 2, as a nontransferable occupancy holding at an annual rental of Rs. 147 odd under the pro forma defendants 5 to 10, that in execution of a decree for rent obtained by defendant 5 under Section 148-A, Ben. Ten Act, against defendant 2 the said holding was put up to sale and was purchased by plaintiff 1 for Rs. 80 on 22nd November 1920. That he obtained posseson through Court and let out a portion of the land to plaintiff 2. An objection was filed by defendant 1, under Rule 100, Order 21, Civil P.C., and the objection was allowed. Hence this suit. The case for defendant I, who alone contested the suit, was that he had purchased the holding from defendant 2 on 22nd June 1913 His case was that the decree under which the holding was sold and purchased by the plaintiff was not a rent decree but a money decree and that nothing passed by the sale in execution of that decree except the right, title and interest of defendant 2 which had already passed to him by the sale on 22nd June 1913.

3. The Court of first instance decreed the plaintiff's suit with costs, holding that the decree in execution of which the plaintiff purchased was a rent decree. This finding was reversed on appeal, the learned Subordinate Judge holding that the decree under which the plaintiff purchased was not a rent decree but only a money decree and that nothing but the right, title and interest of the judgment-debtor passed to the plaintiff.

4. The sole point which has been urged in the appeal is whether the decree under which the plaintiff purchased was a rent decree, of in other words, whether the suit in which the decree was obtained was a suit properly framed under the provisions of Section 148-A, Ben. Ten. Act. Mr. Roy who appears for the appellant has referred us to a number of cases: the cases of Nandalal v. Kala Chand [1910] 15 C.W.N. 820, Brohmandannath Deb v. Hem Chandra. Mitter [1914] 18 C.W.N. 1016, Baikuntha Nath Sen v. Ramapathi Chatterjee [1918] 27 C.L.J. 101, Profulla Chandra Gosh v Baburam Mandal A.I.R. 1921 Cal. 289 Jagabandhu Nandi v. Abdul Hamid Mea A.I.R. 19225 Cal. 82 and Gangamani Biswas v. Raba Ali : AIR1925Cal106 . For the purpose of this appeal it is not necessary to deal with these rulings in extenso. As far as I can see one principle emerges from these decisions, and that principle is that the test, as to whether a suit has or has not been properly framed under Section 148-A, Ben. Ten. Act, is whether the suit is intended to be a suit for the entire rent or not. If the suit is intended for the entire rent due and not merely a suit for the plaintiff's share of the rent only, then the suit would fall under Section 148-A, Ben. Ten. Act, and the decree made in it would be rent decree. To discover whether a case does or does not satisfy this test it is necessary to look at the plaint itself. In the present case the plaintiff stated first that he was the 41/2-annas shareholder and that the remaining ll1/2-annas belonged to his cosharer landlords. He further overruled that he and his cosharer landlord realized their respective portion of the rent separately. He then, stated that the defendant occupies some 6 bighas 12 cottahs odd land of which the total annual rent was Rs. 14-7-101/2 gandas Further he stated that the cosharer landlords, Nos 2 to 6, were asked to join in the suit but they refused, that they were asked to state how much rent was due to them from the tenant and the tenant was also asked to state how much rent was due to the cosharer landlords but they refused to state. Hence the plaintiff was entitled to get a decree for his share of the rent under Section 148-A, Ben. Ten. Act. It was then stated that Rs. 16 odd was due from the tenant on account of his share of the arrears of rent for the years 1323 to 1326 B.S., that he had repeatedly asked for the payment of the rent due but he had not obtained it. Hence he brought one suit, that he might be given a decree for Rs. 20-15-9 gandas. He further prayed that if the defendant objected to pay the plaintiff's share of the rent separately then the plaintiff prayed to include the cosharer landlords' share as shown in the first column of, the schedule and that in such a case plain tiff would pay the remaining cost of stamp that would be due to the Court. I think it is quite obvious reading the prayer (b) that the plaintiff's case does not satisfy the test which I have already set forth. It is quite clear from prayer (b) that the suit was not one primarily for the whole of the rent due for the tenancy but was one primarily for the rent due on the plaintiff's own share; for he states that if the defendant objects to pay the plaintiff's share of the rent separately then the plaintiff prays to include the cosharer landlord's share as shown in the first column of the schedule. In other words, the suit was for the rent of his own share only and not for the whole rent due. Therefore, the plaint doe's not satisfy the test which I have already set forth. That being so it is clear that the decree obtained in the suit was not a rent decree but merely a money decree and that nothing passed to the plaintiff under the sale in execution of the decree but the right, title and interest of the judgment-debtor. That being so, the appeal fails and is dismissed with costs.

Mukerjee, J.

5. I agree.


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