1. This suit is brought by a talukdar to contest the demand of a distraint, and to try the plaintiff's right to the possession of the crop distrained.
2. The defendant admits that he distrained the crops, but denies the plaintiff's right to, and possession of, the land.
3. The plaintiff's case was that he held some of the lands in dispute at a money-rental and some in bhag-jote: the finding of the Court of first instance was that all the lands were let at a money-rental, and that the plaintiff was therefore not entitled to the crops distrained. The opinion of the Subordinate Judge was that the plaintiff could not bring such a suit, because he had no right to the crop, which the Subordinate Judge considered to belong to the cultivators. The suit was accordingly dismissed, and the defendant was declared, according to the provisions of Section 96, Act VIII of 1869, entitled to recover the sum which had been deposited by him as security when removing the crop.
4. In appeal, the Judge differed from the first Court as to the conditions of the tenancy, and held that the plaintiff, under the terms of his contract with his tenants, had no right of possession in the standing crops, but only a lien upon the crop when cut and stored in the threshing floor; that even if the plaintiff had any right to the crop, the tenant should have been joined as co-plaintiff's, and that this not having been done, the suit would not lie. The Judge also expressed an opinion that suits under Section 96 should always be instituted by the tenants who raised the crop. Finding that possession was with the tenants, and that they should have instituted the suit, the Judge, with some modification as to the amount recoverable by the defendant, dismissed the appeal, and confirmed the order of the Court of first instance.
5. In this case a number of hookumnamas have been put in by the plaintiff, which set forth the arrangement come to between him and his tenants, and these documents have been accepted by the Judge as genuine. But he puts upon these documents a construction which we think erroneous.
6. The interpretation we put upon that arrangement is this: The landlord, under exceptional circumstances, supplied the seed; and the agreement was that the tenants should cut and store the crop on his chuck; after the threshing, division was to be made between the landlord and the cultivators. The dominion over the crop was with the landlord, and if that crop was cut by some one else under cover of the law of distraint, the landlord was clearly the person entitled to sue to contest the demand of the distrainor.
7. Upon the facts the Judge's finding is against the distrainor, and he discredits the evidence adduced by him as to the cultivation of the crop.
8. We think that the distrainor has failed to show that he was entitled to make the distraint, and that the plaintiff, has such an interest in the crops distrained as entitles him to institute this suit to set aside the distraint.
9. The result is that the decision of the lower Court must be reversed, and the plaintiff's suit must be decreed by setting aside the illegal distraint of the defendant. The plaintiff will recover costs of all the three Courts from the defendant