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Sasi Kanta Acharjee Bahadur and ors. Vs. Lechoo Sheikh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1936Cal30,160Ind.Cas.577
AppellantSasi Kanta Acharjee Bahadur and ors.
RespondentLechoo Sheikh and ors.
Excerpt:
- .....have purchased the property. the plaintiff comes to court on the allegation that that was not a rent decree at all inasmuch as he had not been made a party defendant. the answer of defendants 1 to 3 is of a two--fold character. firstly, they stated that abdul did in fact represent the tenancy with them inasmuch as he represented his other co--sharers in executing the kabuliat in the year 1921. secondly, they say that in any event, the suit was a properly constituted suit and the decree obtained therein by them was a rent decree having regard to the provisions of section 146--a, ben. ten. act. so far as the first point is concerned, the court of appeal below has recorded a finding that in executing the kabuliat in the year 1921, abdul did not represent his other co--sharers.2. on the.....
Judgment:

R.C. Mitter, J.

1. This appeal is on behalf of defendants 1, 2 and 3 in a suit instituted by the plaintiff for a declaration that his interest is not affected by the sale in execution of a decree for rent obtained by defendants 1, 2 and 3 against one Abdul. At the said sale, defendants 1 to 3 purchased the property. It is admitted that one Sadhu Khan held a jote at a rental of Rs. 13 a year under one Krishna Sundar Bhowmik. This jote has been recorded in khatian No. 64, Defendants 1 to 3 have purchased the interest of Krishno Sundar Bhowmik On the death of Sadhu, the jote was inherited by his widow Sowa Bibi and four sons Abdul, Ebrahim, Nasar and the plaintiff Lachoo Sheikh. In the year 1921, two kabuliats were executed in favour of the landlords one by Nasar, one of the sons of Sadhu Khan and the other by Abdul. In the kabuliat Abdul stated that he was executing the kabuliat on behalf of himself, his mother Sowa Bibi and his brothers, the plaintiff and Ebrahim. In the year 1930, defendants 1 to 3 sued for rent. They made Abdul a defendant but the plaintiff was not made a defendant. Defendants 1 to 3 obtained a decree and in execution of that decree have purchased the property. The plaintiff comes to Court on the allegation that that was not a rent decree at all inasmuch as he had not been made a party defendant. The answer of defendants 1 to 3 is of a two--fold character. Firstly, they stated that Abdul did in fact represent the tenancy with them inasmuch as he represented his other co--sharers in executing the kabuliat in the year 1921. Secondly, they say that in any event, the suit was a properly constituted suit and the decree obtained therein by them was a rent decree having regard to the provisions of Section 146--A, Ben. Ten. Act. So far as the first point is concerned, the Court of appeal below has recorded a finding that in executing the kabuliat in the year 1921, Abdul did not represent his other co--sharers.

2. On the second ground, namely, as to whether the suit of the year 1930 had been framed in accordance with the provisions of Section 146 A, Ben. Ten. Act, the learned Subordinate Judge construes the section and holds that the four clauses of Sub-section 3 of Section 146--A must be taken together and they cannot be taken in a disjunctive way. For the purpose of supporting his conclusion, he noticed the word 'and' before Clause 4, of the said sub--section. Sub-section 2 of Section 146--A provides that notwithstanding anything contained elsewhere either in the Bengal Tenancy Act or in any other law, a decree for arrears of rent of a tenure or holding and a sale in execution of such decree shall be valid against all co--tenants whether they have been made parties defendants to the suit or not and against the holding in the manner provided in Chapter 14 if the defendants to the suit represented the entire body of co--sharer tenants in the tenure or holding for the rent for which the suit is brought. Then Sub-section 3 'enumerates the circumstances under which the entire body of co--sharer tenants may be deemed to be represented by the defendants in a suit for recovery of rent. Four circumstances are noticed in 'the sub--section each being the subject--matter of a separate clause. A reading of the clauses would show that if the defendants in a rent suit fulfil the requirements of any of these four sub--clauses they would be taken to be representing the entire body of co--sharer tenants in the tenure or holding. This is the construction which I put upon this sub--section but inasmuch as the learned Subordinate Judge had put a different construction upon the said sub--section he did not record necessary findings. But as my construction of the section does not agree with the construction put by the learned Subordinate Judge, I am of opinion that the case cannot be disposed of without recording proper findings on the materials on the record. If the learned Subordinate Judge finds that Abdul came within any of the clauses of Sub-section 3, he would hold that the holding had passed to defendants 1 to 3 in execution of the decree for arrears of rent and would dismiss the plaintiff's suit. If he finds on the materials on the record that Abdul did not fulfil any of the conditions stated in any of these four clauses, he would give the necessary declarations in favour of the plaintiff. But in making the declarations he would specify the interest which the plaintiff has in the tenure.

3. The result is that this appeal is allowed. The decree of the learned Subordinate Judge is set aside and the case is remanded to the lower appellate Court for being dealt with in accordance with the directions given above. Costs will abide the result.


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