1. This appeal and the connected Rule are directed against an order made by the Subordinate Judge of Alipore in the course of a partition suit. The suit in question was brought by one Satya Charan Dey, the younger son of one Rakhal Chandra Day, against his elder brother of the half blood, Pulin Bahary Dey, for the partition of the family immoved able and moveable properties. The immoveable properties included the family residential house, being premises No. 30, Beniapukur Road.
2. On the 16th December 1918 a Receiver to the estate under partition was appointed and thereafter, on the 18th March 1919, the plaintiff Satya Charan Day represented to the Court that owing to the conduct of his elder brother the defendant No. 1, be had been compelled to leave the residential house of which, therefore, the plaintiff remained in sole occupation. He, therefore, applied that the defendant No. 1 should be required to pay, in respect of his occupation of this house, a fair rent, which he put at the sum of Rs. 150. On the 7th April after hearing the Pleaders on both sides, the Court assessed the rent at Rs. 100 monthly and directed the Receiver to realize this sum from the defendant No. 1 month by month. It is against this order that the appeal and the Bale were directed.
3. A preliminary objection to the appeal is taken on the ground that no appeal lies: This, however, is a matter of small importance, as, if we think it right to interfere, we can do so in the Rule which has been issued as an alternative to the appeal.
4. It has been urged on behalf of the appellant, and of the petitioner who obtained, the Rule, that the learned Subordinate Judge made this order without due enquiry either as to the reasons which had led the plaintiff to leave the house or as to the sum which ought to be taken as representing fair rent. There does not seem to be much substance in the second contention. The Pleaders whom the Subordinate Judge heard were, no doubt, in a position to give the Court information as to the rent usually payable in this locality. Moreover we find that the plaintiff, if permitted to occupy the house, is prepared to pay even a larger sum. Whatever be the reasons which led the plaintiff to leave the house, there is no question that the defendant No. 1 is now in sole possession, though it appears that part of the building is devoted to the residence of two family deities. The Receiver being now in possession of the estate is entitled, we think, to require the payment of rent by the party who is in sole possession of an important item of family property now under partition, and, on this view, we do not think that our interference in this matter is sailed for.
5. The appeal and the Rule are both dismissed.
6. The opposite party is entitled to his costs in the Rule, which we asses at two gold mohurs. We allow him no costs in the Appeal.