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Syed Ahammad and anr. Vs. Makku Mia and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1948Cal69
AppellantSyed Ahammad and anr.
RespondentMakku Mia and ors.
Cases Referred and Tayaja Molla v. Birendra Nath Ray
Excerpt:
- .....on 20-11-1933. this was later than the decree passed in the rent suit brought by the six annas cosharers which was decreed on 2-11-1933. both the decrees were executed. the dates, however, when the execution cases were initiated, do not appear. in execution of the decree obtained by the ten annas cosharer the tenancy was brought to sale on 10-6-1936, and possession was taken through court on 13-5-1939. in execution of the decree obtained by the six annas cosharer, the identical holding was sold on 12-10-1936, and possession was taken on 24-2-1939. the purchase in each execution case was made by the executing decree-holders. it appears that the six annas cosharers leased out the disputed tenancy to the defendants on 26-5-1939; the ten annas cosharers in their turn, granted a lease to.....
Judgment:

Gopendranath Das, J.

1. This appeal is on behalf of the defendants. The facts are somewhat peculiar. On 18-4-1933, two suits for rent in respect of the same holding were filed by two sets of cosharer landlords, viz., 6 annas and 10 annas landlords. In each suit, the remaining osharers as also the tenant defendant were made parties. The rent suit filed by the ten annas cosharer was decreed on 20-11-1933. This was later than the decree passed in the rent suit brought by the six annas cosharers which was decreed on 2-11-1933. Both the decrees were executed. The dates, however, when the execution cases were initiated, do not appear. In execution of the decree obtained by the ten annas cosharer the tenancy was brought to sale on 10-6-1936, and possession was taken through Court on 13-5-1939. In execution of the decree obtained by the six annas cosharer, the identical holding was sold on 12-10-1936, and possession was taken on 24-2-1939. The purchase in each execution case was made by the executing decree-holders. It appears that the six annas cosharers leased out the disputed tenancy to the defendants on 26-5-1939; the ten annas cosharers in their turn, granted a lease to the plaintiff of the identical land on 5-11-1939. The plaintiff instituted this suit for declaration of title and for recovery of possession. On the statement of facts referred to above, it is clear that the question in controversy is one of the priority between the two purchasers, viz, the purchase by the ten annas cosharers and the purchase by the six annas cosharers. The plaintiff alleges that the purchase by the ten annas cosharers had the effect of a rent sale within the meaning of Section 159, Ben. Ten. Act, and that the defendants' purchase had the effect of a money sale. The case went to trial and it appears from order No. 14 dated 4-6-1941, that the pleaders of the parties admitted that the decree and the sale of each set of cosharers had the effect of a rent decree and of a rent sale. Evidence, however, was not taken on these matters. Relying on these admissions, the trial Court passed a decree in the plaintiff's favour on 10-61941. Against that decree an appeal was taken to the lower appellate Court giving rise to Title Appeal No. 216 of 1911. This appeal was disposed of on 7-11-1941. The lower appellate Court directed a remand to the trial Court for decision of the following issues:

Was Rabeya one of the tenants of the holding? Was she made a party to the suit instituted by the common manager? If not, was the decree btained by the common manager a decree under Chap. 14, Ben. Ten. Act?

The common manager, it may be pointed out, represented the ten anna cosharer.

2. This issue had referred to the nature of the decree obtained by the ten annas cosharers and the nature of the consequential sale in execution of that decree.

3. Both the Courts below have concurred in decreeing the plaintiff's suit. The lower appellate Court has held that the purchase by the ten annas cosharers had the effect of a rent sale and the purchase by the six annas cosharers had the effect of a money sale inasmuch as the notice under Section 148A (7), Ben. Ten. Act, was not proved to have been served on the remaining cosharer landlords.

4. Mr. Das appearing for the defendants-appellants has contested both these findings of the lower appellate Court. As regards the question whether the sale of the six annas co sharers had the effect of a rent sale or not, in my opinion the order of remand in the form in which it was made, precludes enquiry as to the nature of the decree obtained by the six annas co-sharer landlords. It must be taken, therefore, that the decree obtained by the six annas co-sharers had the effect of a rent decree and the execution thereof was taken in accordance with the provisions of Chap. 14, Ben. Ten. Act. The effect of the sale at which the six annas co-sharers purchased is subject, however, to the further question as to whether the decree obtained by the ten annas cosharers was a rent decree or not, and the further question whether the execution there of was in accordance with chap. 14, Ben. Ten. Act and the resulting sale had the effectof a rent sale or not. This question as to the nature of the decree obtained by the ten annas co-sharer landlords seems to have been attacked in the lower Courts on the ground that one of the co-sharer tenants, Rabeya Khatoon, was not made a party to the suit for rent as a co-sharer tenant and the absence of Rabeya Khatoon from the category of defendants in the rent suit rendered the decree otherwise than as a decree binding on all co-sharer tenants within the meaning of Section 146A, Ben. Ten. Act. The question which was canvassed was that as Rabeya Khatun had no homestead in the village Sibpur where the disputed holding was situated, she need not have been made a party to the rent suit, and the decree passed in her absence was a good rent decree. Both the Courts below have concurred in holding that Rabeya Khatoon lived far away at the material dates in the house of her then husband and as such she had no homestead in the village.

5. Mr. Das contends that the word 'homestead' in Section 146A (3)(i) has reference not to the actual residence of the co-sharer tenants in the home-stead but refers mainly to the ownership of the homestead by that co-sharer tenant.

6. Mr. Some appearing for the respondents relied on a decision of Mitter J. in Ayesha Khatun v. Md. Hossain Molla ('37) 41 C.W.N. 85 and urges that the word 'homestead' is used there in the sense of residence or habitation of the co-sharer tenant. In my opinion, the contention of Mr. Some is correct. A reference to the different Clauses (i), (ii), (iii), (iv) of Section 146A (3), Ben. Ten. Act would indicate that the object of these clauses is to import knowledge of the existence of the co-sharer tenants to the landlords. If that is so, then the mere fact that a co-sharer tenant owns a homestead in the village but he does not live there, would not be regarded as sufficient compliance with Section 146A (3)(i). The word 'homestead' has been defined to mean 'the residence of a tenant' in a case under Section 182, Ben. Ten. Act., viz., the ease in Dina Nath Nag v. Sashi Mohan 3 A.I.R. 1916 Cal. 730. The contention of Mr. Das, therefore, on this ground must be overruled.

7. But a further point has been raised by Mr. Das, viz., that the lower appellate Court as well as the trial Court has not come to any finding as to whether the conditions imposed by Section 146A (3)(ii) to (iv) have been fulfilled or not. It is now well settled by decisions of this Court that the four sub-clauses of Section 146A (3) are not disjunctive but they are conjunctive, and the landlord, in order to show that the decree has the effect of a rent decree binding on all the cosharer tenants, must prove the existence of all the conditions referred to in cls. (i) to (iv): See the cases in Amulya Charan v. Pran Krishna : AIR1938Cal531 and Tayaja Molla v. Birendra Nath Ray ('39) 43 C.W.N. 80.

8. I have already found that in the present case, Sub-clause (i) of Section 146A (3), Ben. Ten. Act has been complied with, but there is no finding as to whether the sub-clauses (ii), (iii) and (iv) of Section 146A (3) have been complied with or not. The order of remand was generally made and required the Court below to decide whether the decree obtained by the ten annas co-sharer landlords was a decree under chap. 14, Ben. Ten. Act. In my opinion, therefore, the Courts below should have recorded findings on these three clauses also.

9. The result, therefore, is that the judgment and the decree of both the Courts below must be set aside and the case remanded to the trial Court for a decision on the question as to whether in the rent suit filed by the ten annas cosharer landlords, cls. (ii) to (iv) of Section 146A (3), Ben. Ten. Act have been complied with or not. If they had been complied with the decree obtained by the ten annas co-sharer landlords must be taken to be a rent decree and the resulting sale a rent sale, and in that event a decree will be passed in favour of the plaintiff. If, however, the Court finds that these clauses have not been complied with, the Court will consider as to whether the purchase by the ten annas co-sharers though it would then have the effect of a money sale would have priority over the purchase by the six annas co-sharers which was late in point of time but which was in execution of a decree for arrears of rent obtained in accordance with the provisions of chap, 14, Ben. Ten. Act. If the Court finds that the purchase of the ten annas co-sharers is to be preferred to the purchase of the six annas co-sharers, the Court will pass a decree in favour of the plaintiff, but if, on the other hand, the Court finds that the purchase by the ten annas co-sharers must be postponed to that of the six annas co-sharers, the Court will dismiss the plaintiff's suit.

10. The parties will be allowed to lead evidence only on the question as to whether cls. (ii) to (iv) of Section 146A (3), Ben. Ten. Act have been complied with or not. There will be no order for costs in this appeal.


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