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Sree Sree Radha Ballav Jiu Thakur Vs. Shebaits of Sri Sri Iswar Lakshmi Janardan Thakur and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 1 of 1952
Judge
Reported inAIR1953Cal398
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10
AppellantSree Sree Radha Ballav Jiu Thakur
RespondentShebaits of Sri Sri Iswar Lakshmi Janardan Thakur and anr.
Appellant AdvocateAtul Ch. Gupta and ;Purushottam Chatterji, Advs.
Respondent AdvocateApurbadhan Mukherjee and ;Chandra N. Laik, Advs.
DispositionAppeal allowed
Cases ReferredJatish Chandra v. Kshirode Kumar
Excerpt:
- .....instituted by the zemindar against the then holders of the putni in question. plaintiff 1 of the rent suit was describod as the deity sree sree radha ballav jiu thakur by the shebait maharaja of burdwan represented by the manager, court of wards, and plaintiff 2 was described as the said deity represented by the maharaja of burdwan simpliciter. the suit was decreed in favour of plaintiff 1. it was dismissed as against plaintiff 2. the decree which was drawn up in the suit stated that the rents for the years 1337 to 1340 b.s. aggregating the sum of rs. 4085-2-1 were decreed against all the defendants and a sum of rs. 3599-9-8 was decreed against defendants 10 and 11 for the period 1338 to 1340 b.s. there was a decree for costs to the tune of rs. 528-10-6 against all the defendants. this.....
Judgment:

G.N. Das, J.

1. This is an appeal by defendant 1 Sree Sree Radha Ballav Jiu Thakur by bis shebait Uday Chand Mahatab, Maharajadhiraj Bahadur of Burdwan, against a judgment of P.N. Mookerjee J.

2. The facts which led up to this litigation may be stated as follows. The plaintiffs claimed to be under tenants in respect of a putni mehal which was held by the 'pro forma' defendants as putnidars under the Zemindar, viz., the debottar estate of the Maharaja of Burdwan. In 1934 a suit for rent for the years 1337 to 1340 B.S. was instituted by the Zemindar against the then holders of the putni in question. Plaintiff 1 of the Rent Suit was describod as the deity Sree Sree Radha Ballav Jiu Thakur by the shebait Maharaja of Burdwan represented by the Manager, Court of Wards, and plaintiff 2 was described as the said deity represented by the Maharaja of Burdwan simpliciter. The suit was decreed in favour of plaintiff 1. It was dismissed as against plaintiff 2. The decree which was drawn up in the suit stated that the rents for the years 1337 to 1340 B.S. aggregating the sum of Rs. 4085-2-1 were decreed against all the defendants and a sum of Rs. 3599-9-8 was decreed against defendants 10 and 11 for the period 1338 to 1340 B.S. There was a decree for costs to the tune of Rs. 528-10-6 against all the defendants. This decree was passed on 5-12-1934. It was executed as Rent Execution Case No. 13 of 1938 by plaintiff 1 as aforesaid and the execution prayed for was by a sale of the putni in arrears, the sum claimed in the execution petition being the entire sum decreed, namely, Rs. 4085-2-1 plus costs and interests.

3. In the execution proceeding various objections were raised by the different judgment-debtors. One of the objections taken by judgment-debtor Bhudar Chandra Mukherjee was that the decree could not be executed as a rent decree. This objection was overruled in part by the learned trial Judge. The order is dated 25-7-1938, Ex. K(1). By this order the Court held that the claim for rent for the year 1337 could be executed only as a money decree, but the claim for the years 1338 to 1340 B.S. together with costs could be executed as a rent decree. The Court specifically held that a sum of Rs. 3599-9-6 together with costs would be executable as a rent decree. This order was affirmed on appeal, Ex. K(3).

4. The other set of objections which was filed by some other judgment-debtors related to the absence of Satkori Roy and Jogendranath seems (sic) unrecorded transferees from the recorded tenants as parties defendants in the rent suit. It was contended that as such the decree in question could not be executed as a rent decree, because Satkari Roy and Jogendra Nath Banerjee were not impleaded as parties defendants in the rent suit. This objection wasoverruled by the learned Judge. Thereafter Kent Execution Case No. 13 of 1938 was allowed to be dismissed for default on 10-9-1943, and a fresh execution case was started by plaintiff 1 of the rent suit being Rent Execution Case No. 47 of 1946 praying for execution only in regard to the claim for the years 1338 to 1340 B.S., namely, a sum of Rs. 3599-9-6 together with costs. The prayer was made for realisation of the sum by a sale of the putni in arrears. Meanwhile, in March 1940, the present suit was instituted by the under-tenants praying for a declaration that the decree that was executed in Rent Execution Case No. 13 of 1938 was not a rent decree in the proper sense of the word and for an injunction restraining the decree-holder, defendant 1, from proceeding with the execution. This suit was contested by the defendant 1, i.e., the present appellant. The learned trial judge decreed the plaintiffs' suit being of opinion that the decree under execution was not a rent decree. An appeal was taken by the present appellant to the lower appellate Court which was dismissed. On a second appeal being taken to this Court the judgment and decree of the lower appellate Court were set aside and the case was remanded to the lower appellate Court for a re-hearing of the appeal. As a result of the hearing after remand the lower appellate Court reversed the judgment of the learned trial Judge and dismissed the plaintiffs' suit. Against that judgment and decree the plaintiffs preferred a second appeal to this Court. This appeal was heard by P.N. Mookerjee J. and was allowed and the plaintiffs' suit was decreed with costs in this Court and in the Court below. It is against this judgment that the present appeal has been taken. P.N. Mookerjee J. allowed the appeal preferred before this Court by the plaintiffs solely on the ground that the decree could not be split up so far as the costs are concerned and as such the execution could not be regarded as a rent execution. On all other points the learned Judge agreed with the lower appellate Court.

5. Mr. Gupta, learned Advocate appearing on behalf of the appellant, has contended that the view taken by P.N. Mookerjee J. is not correct. In order to decide this contention it is necessary to consider the precise effect of the decree which was passed in Rent Suit No. 11 of 1934.

6. I have already set out the terms of the decree that was passed in the rent suit. It has to be noted that a decree for a sum of Rs. 4085-2-1 being the claim for rents from 1337 to 1340 B.S. was purported to have been passed against all the defendants. This was followed by a direction that as against defendants 10 and 11 the claim decreed was for the years 1338 to 1340 B.S. and that those defendants were liable for a sum of Rs. 3599-9-8. This was followed by a further direction that all the defendants were, liable to pay the costs of the suit.

7. In my opinion, the decree, read as a whole, implies that there was a decree for the rent of 1337 B.S. so far as defendants 1 to 9 are concerned and there was a decree for the rents of 1338 to 1340 B.S. against all the defendants coupled with the decree for costs against all of them. P.N. Mookerjee J. was of the opinion that on a proper interpretation ofthe decree, the decree for costs read in the light of the judgment passed in the rent suit must be regarded as a decree for costs for the year 1337 B.S. only against defendants 1 to 9' and as a decree for the remaining portion ofthe costs against all the defendants. In his opinion, the decree was ambiguous and it was permissible to refer to the judgment for the purpose.

In so far as the decree for costs is concerned, the decree is specific and clearly makes all the defendants liable for the costs of the suit. Whether such a decree should have been made or not is not the point before us. The decree, as it stands, in my opinion, must be regarded as a decree making defendants 1 to 9 liable for the rent for 1337 and a decree making all the defendants liable for the years 1338 to 1340 B.S. together with costs. The execution which was proceeded with sought to realise the claim for rent for 1338 to 1340 B.S. together with costs in respect of which all the defendants were liable. The claim Under execution was one for rent and the defendants who were made liable to pay the same were all the putnidars recorded in the landlord's sherista. An execution of the decree for this sum must be regarded as an execution of a decree for rent against all the recorded tenants. The fact that by the same decree some of the recorded tenants were made liable for a prior period does not make this part of the decree under execution nonetheless a decree for rent. It must, therefore, be held that the execution which was being proceeded with by the landlord was one for realisation of the rent due by all the tenants vis-a-vis the landlord. No question of splitting up the decree for costs arises. The decree specifically made all the recorded tenants liable for the costs. The ground on which the learned Judge proceeded must, therefore, be overruled.

8. Mr. Mukherjee, learned Advocate for (he plaintiffs-respondents, sought to support the decree on certain other grounds which were decided against the respondents by P.N. Mookerjee J. In the first place, he contended' that the decree which was being executed was not a rent decree because the decree-holder was not the landlord. He suggested that the Record-of-Rights records the Maharaja of Burdwan partly as shebait of the deity and partly in his own personal capacity. The lower appellate Court found that the zemindary interest was acquired by Maharani Kamal Kumari as the shebait of the deity as far back as the year 3235 B.S. from the then proprietor Guruprosad Ghose. The landlord's interest was. therefore, vested in the deity represented by the shebait. The Record-of Rights in so far as it records the Maharaja of Burdwan in his personal capacity as a co-proprietor must be taken to be an erroneous description of the capacity in which it was held by the Maharaja.

9. It was then contended that all the co-sharer landlords were not impleaded. It was suggested that the Mitters of Bagbazar were also interested in the superior right. In support of this Mr. Mukherji referred to the Record-of-Rights as also to the D register. The lower appellate Court considered this matter and was of opinion that the Record-of-Rights is not correct. The lower appellate Court pointed out that the original purchase of the superior right was by Maharani Kamal Kumari as shebait of the deity. The lower appellate Court also pointed out that there have been several proceedings for recovery of rent under the Putni Regulation & no objection was ever taken that the debottar estate was not solely interested inthe superior right. The lower appellate Court also pointed out that the debottar has been realising rents from the putnidars all along and from all these facts the lower appellate Court inferred that the Mitters of Bagbazar had no subsisting interest in the putni. There is, therefore, no substance in the contention raised that all the co-proprietors were not impleaded as plaintiffs in the suit for rent.

10. It was' next contended by Mr. Mukherji that the decree as passed was not a decree in favour of the debottar estate. It was pointed out that the suit was dismissed so far as plaintiff is concerned. It was decreed in favour of plaintiff 1. Plaintiff 1 was described as the deity represented by the shebait Maharaja of Burdwan represented by the Manager, Court of Wards. The question is whether the plaintiff 1 correctly represented the debottar estate. A perusal of the judgment clearly indicates that the plaintiff was seeking to realise the rent which was payable by the recorded putnidars to the debottar estate. The mere fact that the Maharaja of Burdwan as shebait of the deity was represented by the Court of Wards did not show that it was not the debottar estate in whose favour the decree was being passed but that the decree was being passed personally against the Maharaja of Burdwan. The question is whether the deity was seeking to realise the rent from the tenants. In fact, the suit was framed with a view to show that it was the deity who was seeking to realise the rent from the putnidars. The fact that the suit was dismissed as against plaintiff 2 does not show that the debottar estate did not obtain a decree in respect of the putni. A reference to the judgment indicates that the Court was of the opinion that the debottar estate was properly represented by plaintiff 1. I am, therefore, in agreement with P.N. Mockerjee J. when he holds that the deity was properly represented by plaintiff 1 and that the decree as passed must be regarded as a decree in favour of the debottar estate.

11. Mr. Mukherjee next contended that the tenants' interest was not fully represented by the defendants to the suit for rent. It was argued that certain purchasers of fractional shares of the putni, namely, Satkari Roy and Jogendra Nath Banerjee, were not impleded as parties 'defendants. It is not disputed that the tenancy in suit was a putni tenure, and that Satkari Roy and Jogendra Nath Banerjee were not the recorded putnidars in the landlord's sherista. What is contended for is that even so, as Satkari Roy and Jogendra Nath Banerjee were interested in the putni as cosharer putnidars, and as they were not impleaded, the putni tenure could not be regarded as properly represented by the ex-putnidars whose interests had devolved on Satkari Roy and Jogendra Nath Banerjee. Reliance is placed for this proposition on a decision of this Court in the case of -- 'Pulin Behari v. Ram Ranjan' : AIR1944Cal219 . That was an appeal from a decision passed in a suit for rent. The claim for rent was for the years 1339 to 1340 B.S. The original tenants were certain Mitters, Tewaris and Kabirajes. The interest of the Tewaris was sold on 2-1-1935, that is, 18th Pous 1341 B.S. The question which came up for decision in the appeal was whether the Tewaris were liable for the rent which fell due after their interest had been sold and had passed on to one Nistarini Debl. This Court heldthat the moment the interest of the Tewaris was sold and had visited (vested?) in Nistarini Debi, their liability to pay the rent of the putni ceased and since the purchase the purchaser Nistarini Debi was liable for the rent.

In that view, this Court modified the decree passed by the Court below and absolved the Tewaris from the liability to pay rent for the period since 2-1-1935. It was in that connection that it was observed that the moment a transfer takes place, the old putnidar ceased to be liable for the rent and the liability to pay rent attached to the transferee. No point was raised in that case as to the effect of the decree that was passed in the rent suit. The- only question debated was whether the effect of the transfer was to absolve the transferor from the liability to pay rent. It is not necessary for us to consider whether the decision reached in that case is correct or not. It is sufficient to say that that decision is an authority for what it actually decided, namely, that by the effect of a sale the co-sharer ex-putnidar ceased to be liable for the rent. It is to be observed that the decision in the case cited was a decision to which Mitter J. was a party. In an earlier case, namely, the case of -- 'Jatish Chandra v. Kshirode Kumar' : AIR1943Cal319 the question with which we are not concerned came up for consideration before a Bench presided over by the same learned Judge. In that case one of the putnidars was Nafar Chandra Pal Choudhury. Nafar Chandra Pal Choudhury had made a gift of a share in the putni interest to his sons, who were not recognised by the Zemindar. A suit for rent was instituted against all the recorded putnidars including Nafar Chandra Pal Choudhury but to that suit for rent the donees from Nafar Chandra Pal Choudhury were not impleaded.

The suit for rent was decreed. A question arose whether that decree for rent had the effect of a rent decree or not. It was contended that because the donees from Nafar Chandra Pal Choudhury were not impleaded and as they were interested in a part of the putni, the decree that was passed could not be regarded as a rent decree. This contention was overruled by this Court, the judgment being delivered by Mitter J. who was a party to the decision in the case reported in -- : AIR1944Cal219 , referred to above. This decision clearly covers the present question and I respectfully agrep with the view taken in this case. The result of the decision is that a decree for rent obtained against all the recorded putnidars would be a rent decree even though the landlord has failed to implead certain part transferees of an interest in the putni who were not recognised by the landlord. There is, therefore, no force in the contention raised by Mr. Mukherjee on this point.

12. I have dealt with all the grounds on which Mr. Mukherjee sought to support the decree passed by this Court, and I have held that there is no substance in these contentions.

13. In the result, as we disagree with the view taken by P.N. Mookerjee J. on the point, on which he based his judgment, this appeal must be allowed. The judgment and decree passed by P.N. Mookeriee J. are set aside and the plaintiffs' suit is dismissed with costs in all Courts.

Sen, J.

14. I agree.


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