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Babu Sailendra Nath Ghose and anr. Vs. Trustee to Estate of Late Babu Matilal Mallick and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1940Cal484
AppellantBabu Sailendra Nath Ghose and anr.
RespondentTrustee to Estate of Late Babu Matilal Mallick and anr.
Excerpt:
- .....arises for decision in this appeal is whether a certain decree obtained by the respondents was a rent decree or a money decree. the courts below have differed upon the point. the appellants are mortgagees in possession of the patni under the provisions of section 171(1)(c), ben. ten. aot. the pro forma respondents are the patnidars judgment-debtors and the respondents are the plaintiff zamindars. the patni lease contained a term which is frequently found in such leases to the effect that the patnidars were to pay revenue and cesses into the collectorate on behalf of the zamindars. the balance payable to the zamindars themselves was described as munafa. the patnidars not only failed to pay the munafa but also failed to deposit the revenue and cesses with the result that the zamindars.....
Judgment:

Henderson, J.

1. The question that arises for decision in this appeal is whether a certain decree obtained by the respondents was a rent decree or a money decree. The Courts below have differed upon the point. The appellants are mortgagees in possession of the patni under the provisions of Section 171(1)(c), Ben. Ten. Aot. The pro forma respondents are the patnidars judgment-debtors and the respondents are the plaintiff zamindars. The patni lease contained a term which is frequently found in such leases to the effect that the patnidars were to pay revenue and cesses into the Collectorate on behalf of the zamindars. The balance payable to the zamindars themselves was described as munafa. The patnidars not only failed to pay the munafa but also failed to deposit the revenue and cesses with the result that the zamindars had to pay these sums themselves. They accordingly took proceedings under the Patni Regulation and it is not disputed by the judgment, debtors that they were entitled to recover a sum of Rs. 3106-8-11, The patnidars failed to pay anything and the patni itself was brought to sale under the Regulation. A sum of Rs. 565 was realized by this sale. The zamindars then instituted a suit for the balance and obtained a decree with the result that they were satisfied in full. The patnidars however were successful in taking proceedings to have the sale set aside and the result was that the zamindars were deprived of the sum of Rs. 565 realized by the sale. They accordingly instituted the present suit to recover this sum. It is not disputed by the appellants that all the items in the original claim could properly be recovered in a rent suit except item 8. This item includes the costs which were incurred by the plaintiffs in making the deposits of revenue and cesses into the Collectorate.

2. The learned Additional District Judge was himself of the opinion that these items could not be recovered in a rent suit. The plaintiffs attempted to evade the difficulty by saying that this sum might be included in and was less than damages payable under] Section 68, Ben. Ten. Act. This view appears to have found favour with the learned Additional District Judge. In our opinion, this) claim will not bear a moment's examination. The present suit if it be a rent suit, is a rent suit to recover Rs. 565 and damages payable under Section 68, Ben. Ten. Act, would be limited to 25 per cent, on that sum. It is perfectly true, as Dr. Pal contended, that the nature of the suit will not be altered by an exaggerated claim but the plaintiffs never claimed on this basis. They asserted that the claim made in the Ashtam proceedings, to which they were quite entitled, was less than what they might have obtained as damages. That, of course, is a different thing. In the second place, the learned Munsif did not awarti the sum as damages under Section 68, Ben. Ten. Act. If he had awarded such a sum his decree would inevitably have been modified on appeal. He awarded it on the strength of the original claim.

3. There is also another difficulty in the way of the plaintiffs. If we accept the position that this sum is damages under Section 68, Ben. Ten. Act, then they certainly could not be awarded interest at 12 per cent, per annum for six years on those damages. The claim would be quite meaningless. In our view, the learned Munsif made his order in accordance with the realities of the case. The suit is not a rent suit at all. It is a suit to recover the unpaid balance on an agreed account which included items which could not be recovered in a rent suit. The plaintiffs had the choice of obtaining a money decree for the full amount of their claim or a rent decree for lesser amount. Having chosen the former, they must accept the implications. We accordingly allow the appeal. The order of the lower Appellate Court is set aside and that of the Munsif restored with costs in all Courts. We assess the hearing fee in this appeal at two gold mohurs.

Sen, J.

4. I agree.


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