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Behari Lall Sen and ors. Vs. Gour Chandra Biruni and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal606,101Ind.Cas.758
AppellantBehari Lall Sen and ors.
RespondentGour Chandra Biruni and ors.
Cases ReferredHunoomanpersaud Panday v. Babooee Munraj Koonweree
Excerpt:
- .....ground, namely, that the commutation officer had no jurisdiction because the tenants were not occupancy tenants we think that the decision in suit no. 790 of 1919 is conclusive and bars the re-agitation of the same questions in the present suit. from that decision it appears that the court came to the finding that the defendants were occupancy raiyats. it has been contended before us that that was not a ground of the decision as the court also came to the finding in the alternative case on the assumption that they were not occupancy tenants. but we think that the decision was based on both the grounds. consequently, so far as the finding as to the question, of occupancy right is concerned we think that the decision is right. this ground also fails.7. the result is that the appeal is.....
Judgment:

Mitter, J.

1. This is an appeal by the plaintiffs and arises out of a suit for a declaration that the defendants are only bhag tenants and that the decree in the Commutation Case No. 130 of 1921 is not binding against the idol, the plaintiff. It may be mentioned here that the present suit was instituted by one Behari Lal Sen puporting to act as a shebait of the idol Sri Sri Durga as also on behalf of the Plaintiffs Nos. 2 to 12 who allege that they had also the powers of supervision over this endowment. The suit was for recovery of paddy and bhag rent for the year 1328 which they assessed at Rs. 50. The defence was that on the question as to whether money rent or bhag rent was recoverable the decision of the Settlement Officer under Section 40 of the Bengal Tenancy Act is conclusive against the plaintiff. The defence also alleged that with regard to their status as to whether they were bhag tenants or occupancy raiyats there was a previous decision in Suit No. 392 of 1919 which was conclusive between the parties. The Munsif granted a decree in part for the money rent with proportionate costs against Defendants Nos. 1, 2 and 4 and ex-parte against the others. He also held that Plaintiffs Nos. 2 to 12 got no locus standi in the suit, and that, therefore, they were not necessary parties. An appeal was carried to the Court of the District Judge of Bankura who upheld the decision of the First Court and dismissed the appeal.

2. In second appeal before us it has been contended that the decision in the commutation proceedings under Section 40 is not binding on the plaintiff landlords because the deity Sri Sri Durga was not a party to the previous commutation proceedings and that the shebait Behari was there in his personal capacity and not as a shebait. It has also been contended before us that the proceedings under Section 40 are without jurisdiction regard being had to the fact that the tenants were not occupancy raiyats within the meaning of Section 40 of the Bengal Tenancy Act.

3. With regard to the first point it is true that in the commutation proceedings Behari was not described as a she-bait of the idol. But it appears that Behari appeared but did not set up any interest adverse to that of the idol but defended the commutation proceedings as a shebait for we find in the judgment in the commutation proceedings that one of the grounds taken was that it would be a hardship if the bhag rent were turned into a money-rent it being a debutte rproperty. Both the Courts have found that the idol was effectively represented by Behari in those proceedings and this finding is supported by the remark which we have just quoted from the judgment in those proceedings.

4. The cases which have been cited before us to show that the decree against the shebait in his personal capacity is not binding on the debutter estate have no application to the facts of the present case. Here it has not been suggested that Bahari had any interest adverse to that of the debutter estate In this connexion we may state that the observation of the Judicial Committee in the case of Hunoomanpersaud Panday v. Babooee Munraj Koonweree [1885] 6 M.I.A. 393 car properly be applied. In that case mortgage-bond was executed by the guardian of an infant heir describing herself is the proprietress of the estate and a suit was instituted by the infant after attaining majority for the recovery of possession of the property from the mortgagee. To that suit the guardian (Ranee) was made a party defendant. Their Lordships at page 412 observed:

They consider that the acts of the Ranee cannot be reasonably viewed otherwise than as acts done on behalf of another, whatever description she gave to herself, or others gave to her; that she must be viewed as a manager inaccurately and erroneously described as proprietor or heir.

5. In this view we think that the lower Courts were right in coming to the conclusion that there was effective representation in the commutation proceedings although the suit was nominally brought against Behari as such proceedings were really directed against the debutter estate. This ground of appeal, therefore, fails.

6. With regard to the second ground, namely, that the Commutation Officer had no jurisdiction because the tenants were not occupancy tenants we think that the decision in Suit No. 790 of 1919 is conclusive and bars the re-agitation of the same questions in the present suit. From that decision it appears that the Court came to the finding that the defendants were occupancy raiyats. It has been contended before us that that was not a ground of the decision as the Court also came to the finding in the alternative case on the assumption that they were not occupancy tenants. But we think that the decision was based on both the grounds. Consequently, so far as the finding as to the question, of occupancy right is concerned we think that the decision is right. This ground also fails.

7. The result is that the appeal is dismissed with costs.

Duval, J.

8. I agree.


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