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BepIn Chandra Mukhopadhya Vs. Taraprasanna Chakrabarty and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Reported inAIR1935Cal498
AppellantBepIn Chandra Mukhopadhya
RespondentTaraprasanna Chakrabarty and ors.
Cases Referred and Naina Pillai v. Rama Nathan
Excerpt:
- .....up to 13th april 1916), making their cosharer landlords parties defendants. this suit was numbered rent suit no. 2001 of 1916. to the said suit defendant 2 was not made a party defendant as the plaintiffs refuse to recognize him as a tenant. defendant 1 appeared in the suit, pleaded that he held a transferable holding and had transferred the same to defendant 2. thereafter he did not take any further part in the suit with the result that rent suit no. 2001 of 1916 was decreed ex-parte. it has been found however in this suit that the holding is a non-transferable one and that finding has not been challenged and cannot be challenged now.2. the plaintiffs put the decree passed in rent suit no. 2001 of 1916 in execution and purchased the same on 15th march 1919 at the auction sale and took.....
Judgment:

R.C. Mitter, J.

1. This appeal is on behalf of defendant 2 in a suit for recovery of khas possession instituted by the plaintiffs who are admittedly cosharer landlords. Defendant 1 was admittedly the tenant, holding a non-transferable occupancy holding. On 24th March 1915 he sold the holding to defendant 2, who went into possession after his purchase. Notwithstanding the sale to defendant 2 by defendant 1 the plaintiffs sued defendant 1 for the arrears of rent of the years 1319 to 1322 (i.e., for rent due up to 13th April 1916), making their cosharer landlords parties defendants. This suit was numbered Rent Suit No. 2001 of 1916. To the said suit defendant 2 was not made a party defendant as the plaintiffs refuse to recognize him as a tenant. Defendant 1 appeared in the suit, pleaded that he held a transferable holding and had transferred the same to defendant 2. Thereafter he did not take any further part in the suit with the result that Rent Suit No. 2001 of 1916 was decreed ex-parte. It has been found however in this suit that the holding is a non-transferable one and that finding has not been challenged and cannot be challenged now.

2. The plaintiffs put the decree passed in Rent Suit No. 2001 of 1916 in execution and purchased the same on 15th March 1919 at the auction sale and took symbolical possession on 15th November 1919. They brought this suit on 19th March 1929, that is within 12 years of their auction purchase. The suit has been brought in their character of auction-purchasers. In para. 6 of the plaint they recite the purchase of the holding on 15th March 1919 at the rent sale and make it the foundation of their suit. They recite the sale of defendant 1 to defendant 2 and characterise it as fraudulent and without consideration. They do not base their case on abandonment and claim sixteen annas right in the property in suit which they could not have done if their case had been based on abandonment. Defendant 2 filed a written statement stating that the holding was a Kaem Karsha transferable holding, that he ought to have been joined as a party defendant in Rent Suit No. 2001 of 1916 and not having been impleaded therein he says that the decree obtained therein is a money decree. He pleaded further that the suit was barred by limitation and that by asserting a Kaem Karsha right for more than 12 years to the knowledge of the landlords he had acquired such a right.

3. The Munsif found that the holding was in fact a Kaem Karsh transferable holding. In that view he held that the plaintiffs were bound to make defendant 2 a party defendant to Rent Suit No. 2001 of 1916 and they not having done so the decree passed in that suit was a money decree and the auction sale at which the plaintiffs purchased vested in them only the right, title and interest of defendant 1 and he had none at the date of the said sale. The suit: was accordingly dismissed by the trial Court. On appeal the Subordinate Judge held that the holding was a non-transferable one and that the decree in Rent Suit No. 2001 of 1916 had the force of a rent decree under the Bengal Tenancy Act and in that view he has decreed the suit holding at the same time that though defendant 2 had possession since March 1915 the suit was not barred by limitation.

4. Before me three points are urged, namely: (1) that by assertions for more than 12 years made to the knowledge of the landlord a transferable Kaem Karsha interest has been acquired by adverse possession; (2) that the decree passed in Suit No. 2001 of 1916 is a money decree, and (3) that the suit is barred by limitation, time having commenced to run from 24th March 1915, the date of defendant 2's purchase.

5. I am unable to give effect to any of these contentions. It is well settled that a tenant having a lower status cannot by asserting to his landlord's knowledge for more than 12 years that he has a higher status acquire the higher status: Mohammad Mumtaz Ali Khan v. Mohan Singh, 1923 PC 118, Madhavrao Waman v. Baghunath Venkatesh, 1923 PC 205 and Naina Pillai v. Rama Nathan, 1924 PC 65. It must be taken therefore that defendant 1 had only a non-transferable occupancy holding. The plaintiffs were not bound to recognize defendant 2 as their tenant and could proceed to realize arrears of rent by a suit against the recorded tenant. The decree passed in Bent Suit No. 2001 of 1916 which was framed under Section 148-A, Ben. Ten. Act, is therefore a rent decree and the holding passed to the plaintiffs at the auction sale held on 15th March 1919, and defendant 2 cannot resist their claim for Khas possession unless their claim is barred by limitation. It is therefore necessary to consider the question of limitation. In the plaint the plaintiffs claim sixteen annas of the land on the basis of their purchase at the rent sale. They pray for a declaration of their title as purchasers at the rent sale. If they had based their claim on abandonment they being cosharer landlords, could have claimed qua landlords only a share and could have only claimed joint possession with their cosharer landlords who have been made proforma defendants in the suit. In spite of a transfer a landlord is undoubtedly entitled to sue his recorded tenant of a non-transferable holding for rent. If at the rent sale a stranger purchased the holding his suit for possession would have been in time if brought within 12 years of his purchase. It would not have been necessary for him to give any notice under Section 167, Ben. Ten. Act, to defendant 2, for he being an unrecognized purchaser of a non-transferable holding, his interest is not an encumbrance within the meaning of Section 161 of the said Act. A cosharer landlord purchaser cannot be in a worse position.

6. In this view of the matter I hold that the suit is not haired by limitation, which commenced to run from 15th March 1919. The appeal is accordingly dismissed with costs. Leave to appeal under the Letters Patent asked for is refused.


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