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Woomesh Chandra Datta Chowdhury Vs. Jabed Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1944Cal42
AppellantWoomesh Chandra Datta Chowdhury
RespondentJabed Ali and ors.
Cases ReferredProsunno Chunder v. Kristo Chytunno
Excerpt:
- .....admittedly these two under-tenures were held by the defendants under a tenure owned by one durga charan guha thakurta. durga charan died in october 1920, leaving a will and two sons, haran and rajendra. by his will he appointed his son haran and one nibaran chandra ghosh as joint executors. the executors applied for the probate of the will and on 26th february 1921, the application was allowed. the executors however did not obtain the grant of the probate till 20th january 1925.2.the landlords of durga charan's tenure had instituted a suit for recovery of arrears of rent of the tenure against durga charan during his lifetime and obtained a decree in that suit before his death. they took out execution of this decree after his death making his two sons parties to the execution.....
Judgment:

Pal, J.

1. These appeals are by the plaintiff in a suit for recovery of arrears of rent of two under-tenures. Admittedly these two under-tenures were held by the defendants under a tenure owned by one Durga Charan Guha Thakurta. Durga Charan died in October 1920, leaving a will and two sons, Haran and Rajendra. By his will he appointed his son Haran and one Nibaran Chandra Ghosh as joint executors. The executors applied for the probate of the will and on 26th February 1921, the application was allowed. The executors however did not obtain the grant of the probate till 20th January 1925.

2.The landlords of Durga Charan's tenure had instituted a suit for recovery of arrears of rent of the tenure against Durga Charan during his lifetime and obtained a decree in that suit before his death. They took out execution of this decree after his death making his two sons parties to the execution proceeding as his legal representative, and in this execution case put the tenure to sale under ch. 14, Ben. Ten. Act. The sale was held on 3rd February 1923, and some Sarkars were the auction purchasers. It may be noticed that Haran, one of the executors, was party to this execution proceeding; but no objection was taken to the execution on the ground that Durga Charan left a will and that his two sons were not his legal representatives. After this sale and before obtaining the grant of the probate the executors of the will of Durga Charan sold the tenure to one De Cilva on 13th June 1924. Later on, the plaintiff purchased the tenure from De Cilva. The claim for rent in the present suit relates to the period from Baisakh 1341 B.S. to Poush 1344 B.S (i. e. April 1934 to January 1938).

3. Defendants l, 4, 12, 19 (ka) and 24 contest the claim. Their defence inter alia is (1) that the plaintiff acquired no title to the tenure by his purchase, (2) that there is no relationship of landlord and tenant in respect of the under-tenure between the plaintiff and the defendants, and (3) that the Sarkars, the fraction purchasers of the tenure, were their landlords and they realised rent for the period from the defendants, It transpired in evidence that on two previous occasions the plaintiff obtained two decrees for arrears of rent of this under-tenure against these defendants in his rent suits Nos. 750 of 1925 and 126 of 1929. The Sarkars were no parties to these suits. The plaintiff contends that so far as the present defendants are concerned these decrees would bar the issue as to relationship of landlord and tenant between the plaintiff and the defendants by the principle of res jndicata. It appears that the Sarkars also obtained a decree against these defendants in their rent suit No. 137 of 1931 without im-ploading the plaintiff as party in that suit. The defendants contested the claim of the Sarkars up to this Court but ultimately failed. The learned Munsif dismissed the suit holding that no relationship of landlord and tenant subsisted between the parties in respect of the disputed jamas. He found that the under-tenure of the defendants was sold away in 1930, in execution of the plaintiff's decree in his rent suit No. 126 of 1929, and that as the result of this sale the relationship of landlord and tenant between the plaintiff and the defendants, even if it ever existed, came to an end. On appeal by the plaintiff, the learned Additional District Judge held that the two sons of Durga Charan fully represented the tenure in the execution proceeding find consequently by the sale held in the execution proceeding in question the tenure it-self passed to the Sarkars. The plaintiff's vendor De Cilva and the plaintiff by his purchase from De Cilva therefore acquired no title to the tenure. He therefore affirmed the decision of the Court of first instance.

4. Mr. Guha appearing for the appellant before us contends (1) that as the executors of tho will of Durga Charan were not made parties to the proceeding in execution of the decree for rent of the tenure, the tenure did not pass to the Sarkars by the auction sale, held on 3rd February 1928; (2) that the plaintiff having derived title from the executors is the owner of the tenure under which the defendants hold their under-tenure and; (3) that at any rate after the decree in his previous rent suits the defendants are debarred from denying the relationship of landlord and tenant between the parties.

5. In support of his first point Mr. Guha strongly relies on the decision in Harish Chandra Biswas v. Puridas Das ('10) 12 C. L. J. 561 (Brett and Richardson JJ.). In the case before us the decree for arrears of rent of Durga Charan's tenure was obtained by his landlords during his life-time. The execution of that decree was taken out after his death. Section 50, Civil P.C. entitled the decree-holder to execute the decree against the legal representative of the deceased. Section 2 (11) of the Code defines the expression 'legal representative' to mean a person who in law represents the' estate of a deceased person, and to include any person who intermeddles with the estate of the deceased. The two sons of the deceased tenure-holder judgment-debtor were made parties in the execution proceeding as the legal representatives of the deceased. The only plea taken by the plaintiff in the present ease is that in law the tenure did not vest in them. It is not even alleged that these two sons were not in possession of the estate of the deceased, that they did not intermeddle with the estate of the deceased. The very decision relied on by Mr. Guha makes a distinction in favour of such an occasion and distinguishes the decision in Prosunno Chunder v. Kristo Chytunno ('79) on that ground. In our opinion the plaintiff has not in this case succeeded in showing that the prior sale of 3rd February 1923, did not pass the tenure to the Sarkars.

6. As regards the third contention of Mr. Guha the view taken by the learned Munsif must be upheld. The under-tenure was sold away at the instance of the plaintiff himself in execution of his decree for arrears of rent in respect of it. After that the old tenancy right of the defendants ceased to exist. If they succeeded in remaining in possession as against the auction purchaser, or in regaining possession, the old relationship between the plaintiff and themselves did not thereby revive. It would be a new legal relation between the parties constituted by a new set of facts. The decision in respect of the old relationship would not debar the issue in respect of this new legal relation. The defendants have shown that since then the tenure has been in the possession of the Sarkars and they have been realising the rent of the under-tenure from the defendants. In the result these appeals fail and are dismissed. As there has been no appearance before us by the defendants we make no Order for costs.

Akram, J.

7. I agree.


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