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Mohomed Mohsen Ali and ors. Vs. Roy Kshitish Bhusan Roy Bahadur and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1936Cal235
AppellantMohomed Mohsen Ali and ors.
RespondentRoy Kshitish Bhusan Roy Bahadur and ors.
Cases ReferredLodai Mollah v. Kally Dass
Excerpt:
- .....a.c. gnose has taken the correct view of the law. now the position is generally this: that in a rent suit a person who is not on the record cannot intervene as a matter of right and attempt to transform a rent suit into a title suit. this position was laid down in clear terms by field, j., in the leading case of lodai mollah v. kally dass (1882) 8 cal 238. no doubt in certain cases a tenant can defeat a.rent suit by pleading that the plaintiff is not his landlord but the landlord is somebody else. if such questions are raised by the tenant in cases where it is open to him to raise such question, as for instance where the plaintiff claims to be the landlord by devolution of interest, such questions must be gone into. but even in those cases the third party in whom title is set up by.....
Judgment:
ORDER

R.C. Mitter, J.

1. A very interesting question has been raised by Mr. Hossein in this case. The question is whether certain persons who are not made parties in a suit for rent apparently framed under Section 148-A, Ben. Ten. Act, have the right to intervene in the suit on their own application. The facts are these: Opposite parties Nos. 1 and 2, who are admittedly co-owners of Touzi No. 3 of the Pabna Collectorate and some of the joint landlords of the tenants, who are opposite parties Nos. 3 to 10, instituted a suit for recovery of their shares of the rent for the years 1337 to 1340, their shares being admittedly 8a Section 13 gds. odd. To the suit they made a large number of persons, who, according to them, are their co-sharers and joint landlords of opposite parties Nos. 3 to 10. Those persons are opposite parties Nos. 11 to 54. There is no controversy on the point that opposite parties Nos. 16 to 42 and 46 to 54 have still interest in the aforesaid Touzi and are some of the joint landlords of the opposite parties Nos. 3 to 10. But the controversy relates to the rights of opposite parties Nos. 11 to 15 and 43 to 45. The petitioners before me made an application to the learned Munsiff on 26th September 1934 to be added as proforma defendants. The position that they took up in the application is that 1 anna share of separate account No. 16 of touzi No. 3 which originally belonged to opposite parties Nos. 11 to 15 and 43 to 45 was sold at a revenue sale at which they purchased. They accordingly put in the application alleging that after the sale the opposite parties Nos. 11 to 15 and 43 to 45 had no longer any interest in the touzi and had ceased to be the joint landlords of opposite parties Nos. 3 to 10 and that the petitioners became the co-sharers landlords of the said persons from the date of the revenue sale. On 27th September 1934 the learned Munsiff granted that application and the petitioners before me were added as proforma defendants and the register of suits was amended accordingly. Later on the petitioners before me made a further application to the learned Munsiff for being transferred to the category of the plaintiffs. Apparently this application was made on the footing of the provisions of Section 148-A, Ben. Ten. Act.

2. This application was also granted and the petitioners before me were transferred as CO plaintiffs. It appears that at the time when these orders were made there was no opposition either by the tenants or the original plaintiffs or any of the pro forma defendants on the record. But it is equally clear that none of the parties consented to the said applications of the petitioners. After these orders had been passed the learned Munsiff who had seisin of the case was transferred and the matter came up before his successor-in-office, Mr. A.C. Ghose. The matter came up in this way. The petitioners before me made an application for removing from the record the names of opposite parties Nos. 11 to 15 and 43 to 45 who were pro forma defendants 1 to 5 and 29 to 31. As soon as that prayer was made it was opposed both by the original plaintiffs, namely opposite parties Nos. 1 and 2 and the pro forma delendants. The matter was heard at length and by his order dated 28th February 1935 the learned Munsiff Mr. A.C. Ghose did not accede to the prayer and came to the conclusion that the names of the petitioners had been put on the record wrongly. He virtually recalled the orders of his predecessor allowing the petitioners before me to intervene and allowing their application to be transferred to the category of the plaintiffs. This is against this order that the present rule is directed and Mr. Hossein in support of the rule takes up two points, namely that Mr. A.C. Ghose had no jurisdiction to vacate the orders passed by his predecessor and that in any event, his clients had the right to intervene in the suit and to claim relief in the suit as co-plaintiffs.

3. With regard to the first point, it may be that Mr. A.C. Ghose, acted irregularly when he vacated the previous orders passed by his predecessors. But in asmuch as the matter is before me it is open to me to consider in considering the legality of the order against which this rule is directed whether the previous orders adding the petitioners as pro forma defendants and later on transferring them as co-plaintiffs are orders which could be justified in law. As they cannot be justified in law I am bound to discharge the rule on the footing that Mr. A.C. Gnose has taken the correct view of the law. Now the position is generally this: that in a rent suit a person who is not on the record cannot intervene as a matter of right and attempt to transform a rent suit into a title suit. This position was laid down in clear terms by Field, J., in the leading case of Lodai Mollah v. Kally Dass (1882) 8 Cal 238. No doubt in certain cases a tenant can defeat a.rent suit by pleading that the plaintiff is not his landlord but the landlord is somebody else. If such questions are raised by the tenant in cases where it is open to him to raise such question, as for instance where the plaintiff claims to be the landlord by devolution of interest, such questions must be gone into. But even in those cases the third party in whom title is set up by the tenant has no right to intervene in the suit. This position is clearly laid down by Field, J., and this proposition is adopted with full approval by Suhrawardy and Cuming, JJ., in Indra Narain Manna v. Sarbasova Dasi 1925 Cal 743. The passage is at the bottom of p. 343 and runs as follows:

Then the learned Judge (Field, J.,) proceeds to examine the English law on the point and comes to the conclusion that there is no authority for the procedure adopted by the Court, in the circumstances, of adding a third party to a rent suit for the purpose of determining the question of title raised. That case lays down the very sensible and salutary principle that in a rent suit when the defendant pleads jus tertii or right of a third party, the Court ought not to make such a third party a party in the suit and convert a suit for rent into a complicated title suit. The reasons given in support of this view are very cogent and need not be, repeated here.

4. That being the general principle, I hold that unless there is some provision in the Bengal Tenancy Act, the petitioners before me had no right to intervene in the rent suit on their application, and the orders allowing them to intervene in the suit and subsequently to become coplaintiffs must be held to be wrong orders. So far as the Bengal Tenancy Act is concerned, I have examined the provisions with care and the learned Advocates appearing in the case before me have also examined them with great care and I do not find anything in the Bengal Tenancy Act which has, in the case of persons claiming to be landlords, modified those general principles. There are however indications in the Act itself which would furnish a clue to the intention of the legislature. Those indications I will point out later on. Now Section 148-A says that a co-sharer landlord in certain circumstances can institute a suit for rent, and for his own share of the rent, and if he follows the procedure provided for in that section the decree that he will obtain would be a rent decree within the meaning of the Bengal Tenancy Act, that is to say a decree by which he will have a first charge upon the holding or tenure. On a plaint by a co-sharer landlord framed according to Section 148-A the Court shall by summons in the prescribed form call upon the remaining co-sharer landlords made parties defendants to join in the suit as co-plaintiffs for their shares of the rent due to them in respect of the tenure or holding up to the date of the institution of the suit. If a special summons mentioned in Sub-section 2 is served and only in that contingency the co-sharer landlords who have been made defendants in the suit would be debarred from suing for their share of the rent for the period covered by the suit unless they come in as co-plaintiffs. But even if certain persons are not made defendants in the suit as co-sharers, or if made defendants in the suit, but no special summons are served on them, then there is no bar to their instituting a suit for rent for their share for the same period.

5. This is the position which is clear on the section itself. Who must be made defendants in their character as co-sharer landlords in a suit framed under Section 148-A, Ben. Ten. Act, would depend upon the choice and risk of the plaintiff. If he leaves some of them out, his suit may be a suit badly framed. But there is no provision in Section 148-A or any of the provisions in the Bengal Tenancy Act which allows a person who claims to be co-sharer landlord, but has been left out in the suit instituted under Section 148-A, to come in and intervene The legislature has framed a specific provision when cosharer tenants have been left out in a suit for rent. Section 146-B gives the right to a co-sharer tenant to come in the suit as a matter of right and on his own application. The fact that there is no corresponding provision concerning persons who claim to be co-sharer landlords and who have been left out in a suit for rent indicates that the legislature did not intend to depart from the general principle formulated by Field, J., in Lodai Mollah v. Kally Dass (1882) 8 Cal 238, the principles which I have indicated above. I hold accordingly that there is no procedure by which the persons in the position of Mr. Hossein's clients can as of right come in and intervene in the suit for rent. Having regard to the provisions of Section 148-A, some of which I have noticed in my judgment, I do not see how his clients can be prejudiced by their not being allowed to intervene in the suit which has been instituted for rent by opposite parties Nos. 1 and 2. They are no parties to that suit, and no special summons had been served upon them. There is no bar, subject to the question of limitation to their instituting a suit against the tenants for their share of the rent. In any event there is no legal' bar in their instituting a suit for establishment of their title to the 1 anna share against opposite parties Nos. 11 to 15, 43 to 45 and for appropriate reliefs which would compensate them. I accordingly hold that the order passed by the learned Munsiff Mr. A.C. Ghose is a correct order and in any event that order ought not to be revised inasmuch as the expunging of the names of the petitioner from the records of the rent suit has not prejudiced and will not prejudice them in any way. If their claims are not barred by time, they have their remedies and they can seek relief in proper proceedings to be instituted by them. In this view of the matter I discharge this rule, but in view of the circumstances of the case I do not make any order for costs in this rule.


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