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Jabbar Ali Sardar and ors. Vs. Monmohan Pandey - Court Judgment

LegalCrystal Citation
SubjectTenancy ; Civil
CourtKolkata
Decided On
Reported inAIR1929Cal110,114Ind.Cas.485
AppellantJabbar Ali Sardar and ors.
RespondentMonmohan Pandey
Cases ReferredIn Dukha Mandal v. W.N. Grant
Excerpt:
- .....that monmohan pandey had brought a suit on a mortgage which he held against gunendra nath. in that suit gunendra was appointed receiver by the court for the purpose of selling the mortgaged properties by private treaty for paying off the mortgage debt. gunendra under the authority thus given to him sold the properties to the mortgagee monmohan pandey.3. on these facts, the first question that has to be determined is whether the proceedings were bad and void ab initio not having been instituted with the leave of the court appointing gunendra as receiver. in the first place, gunendra's appointment as receiver was limited to a particular purpose. in the second place admitting that he was appointed a receiver under order 40, rule 1, civil p. c, with all the powers and liabilities attached to.....
Judgment:

1. The tenants are the appellants in this group of eight appeals which arise out of proceedings under Section 105, Ben. Ten. Act. The respondent landlord claims settlement of fair and equitable rent in respect of the lands of the appellants who have been entered in the Reeord-of-Rights as settled raiyats. The defence mainly was that the defendants were mokarari tenants whose rents were not liable to enhancement. Both the Courts below have held that the jamas are liable to enhancement and settled rents in respect thereof. The Assistant Settlement Officer enhanced the rents under Section 30(b), Ben. Ten. Act, for rise in the price of staple food crop to two and half annas in the rupee. The learned Special Judge reduced it to two annas in the rupee. Except this modification the decisions of the first Court in the cases before us were upheld in appeal.

2. Some preliminary objections have been taken before us with regard to the validity of the proceedings in the trial Court which are common grounds in all these appeals. The first objection under this head is on the ground that Gunendra Nath Basu Mallik who made the applications under Section 105, Ben. Ten. Act, was a receiver appointed by Court in respect of the property in suit and as the applications were filed without the leave of the Court which appointed him receiver the proceedings are bad in law and they should not have been continued. During the course of the proceedings Gunendra Nath Basu Mallik sold his interest in the lands in suit to the respondent before us --Monmohan Pandey--who continued the proceedings under Section 105, Ben. Ten. Act. There is no evidence on the record, as has been admitted by the appellants' vakil, except the kobala executed by Gunendra Nath Basu Mallik in favour of Monmohan Pandey, relating to the appointment of Gunendra as receiver in respect of this property. Prom a perusal of the kobala it appears that Monmohan Pandey had brought a suit on a mortgage which he held against Gunendra Nath. In that suit Gunendra was appointed receiver by the Court for the purpose of selling the mortgaged properties by private treaty for paying off the mortgage debt. Gunendra under the authority thus given to him sold the properties to the mortgagee Monmohan Pandey.

3. On these facts, the first question that has to be determined is whether the proceedings were bad and void ab initio not having been instituted with the leave of the Court appointing Gunendra as receiver. In the first place, Gunendra's appointment as receiver was limited to a particular purpose. In the second place admitting that he was appointed a receiver under Order 40, Rule 1, Civil P. C, with all the powers and liabilities attached to a receiver, there does not seem to be any bar to his instituting these proceedings. As I have said there is no evidence as to the terms under which the receiver was appointed ; and it may be presumed that he was appointed under Order 40, Rule 1, Civil P.C., and his appointment was in terms of the form given in Appendix F to the Code of Civil Procedure which is the form in use in the mofusil. Under those terms the receiver is vested with all the powers mentioned in Order 40, Rule (1)(d). Under that sub-clause the receiver is vested with the power of bringing suits for the management, protection, preservation and improvement of the property and the present proceedings are proceedings taken in course of proper and due management and for the improvement of the property. But it is said that these proceedings were started by Gunendra in his own name and not as receiver. The omission as to the description of the plaintiff as receiver does not render a suit or proceeding incompetent if under the letter of appointment he has the power to institute the suit and it has been instituted in the course of the management of the property over which he has been appoiuted receiver. In the case of Jagat Tarini Dasi v. Nabagopal Chaki [1907] 34 Cal. 305, the learned Judges observe at p. 318 thus:

A Court may authorize a receiver to sue in his own name, and that a receiver who is. authorized to sue, though not expressly in his own name, may do so by virtue of his appointment with full powers under Section 305 (corresponding to Order 40, Rule 1) is supported on principle and authority and is consistent with the existing practice.

4. Thirdly, there does not seem to be any bar in the circumstances of the present case to Gunendra's instituting these proceedings in his own name as proprietor of the property in spite of the fact that he was appointed a receiver in respect of it. If a party is appointed receiver he does not lose his character as a party to the suit nor a fortiori does he lose the right that he possesses as proprietor of the property in respect of which he is appointed a receiver. In Scott v. Viatel [1847] 2 Ph. 229, it was held that a party by being appointed a receiver does not thereby lose his privilege as a party to the cause. It is not disputed that if a party who is admittedly the owner of a property is appointed a receiver he does not lose the right of dealing with the property during the continuance of the receivership by selling, mortgaging, or transferring his interest therein in any way but not so as to impair the value of the property in his hand or to cause interference with his possession of the property as receiver. By appointing a receiver the Court takes upon itself the management of the property during the continuance of the litigation, The proprietary right or interest in the property is not transferred from the rightful owner either to the Court or to the receiver appointed by it. There is no bar in law to the proprietor dealing with his property though a receiver may have been appointed in respect of it with certain reservations with regard to the right of the Court to manage the property through a receiver. The present proceedings were started by Gunendra for the improvement of the property and for increase in the value of the property which he was charged with selling and which it was his interest to sell at the highest value. The strictness of the rule as to the necessity of the leave of the Court to bring or defend the suit applies more appositely in the case of appointment of a person who is not a party to the suit or who is not interested in it.

5. Fourthly, Gunendra was a party to the settlement proceedings under Ch. 10, Benten. Act, and an applicatiou under Section 105, Ben. Ten. Act, was made in the course of those proceedings which a party to them is entitled to maintain. Fifthly, the initiation of the proceedings even without the leave of the Court was not absolutely void but could have been subsequently sanctioned by the Court appointing Gunendra as receiver. During the course of the proceedings and before they had terminated Gunendra had sold his interest in the property to the respondent who continued them up to the finish. Whatever defect there might have been at the initiation of the proceedings must be taken to have ceased to affect them when Monmohan became the proprietor and continued the proceedings in his own name. This ground accordingly must be overruled.

6. The second preliminary objection taken to the proceedings is that the respondent Monmohan being the karta of a joint Mitakahara family is not competent to maintain proceedings under Section 105 being one of several landlords, his cosharers being his sons. The proceedings at the start were not open to this objection and it has been held in Kali Charan Singha v. Mohammad Ismail Chowdhury A.I.R. 1923 Cal. 637 that if proceedings are started regularly it would make no difference if during the continuance of them one of the cosharer landlords dies, and when once an application is properly made further proceedings are governed by the Code of Civil Procedure. But on the merits, this objection has no force. It has not been proved that the respondent is still a member of a Mitakshara family consisting of more members than one and that he is still governed by the law of that school. A case connected with the family to which the respondent belongs came up to this Court, namely the case of Sarada Prasanna Roy v. Uma Kanta A.I.R. 1923 Cal. 485. In that case it was held that the family of which the respondent was a member migrated more than 200 years ago from upcountry to Bengal and had adopted the Bengal School of Hindu Law as the law governing it. We have referred to the paper-book and the. decree in the case and we find that Monmohan Pandey is'a descendant of the ancestor who had migrated to this province more than 200 years and had adopted the Dayabhaga School of Hindu Law by which the family is being governed. This objection must also be overruled.

7. The third preliminary objection is to the effect that some tenants, specially in second appeals Nos. 1656, 1658 and 1662 were joined after the period of limitation namely, two months from the date of the publication of the Record-of Rights. The fact appears to be that an application was made under Section 105, against the tenants whose names were recorded in the Record-of-Eights. But at the time when the application was made some of them were dead. It is argued that the applications against the dead persons are incompetent in the same way as a suit against a dead person is not maintainable. Iu second appeal No. 1662 this objection is of no avail because the defendants there Were properly described but as they were minors at the time their guardian was appointed subsequently. The fact that the guardian was appointed after two months from the publication of the Record-of-Rights will not render the application barred by limitation. On the recent authorities of this Court the objection must be regarded as without substance. In the case of Sati Prasad Garga Bahadur v. Sonaton Dhara A.I.R. 1921 Cal. 591 a view was expressed that proceedings under Section 105, Ben. Ten. Act, are in the nature of suits and all the formalities and the procedure laid down by the Code of Civil Procedure should apply to proceedings under that section. This broad proposition was not necessary for the decision in that case in which the principal question raised was whether the proceedings by a member of a joint Mitakshara family were maintainable in view of Section 188, Ben. Ten. Act, and it was held that they were not. The opinion expressed in Sati Prasad Garga's case A.I.R. 1921 Cal. 591 has not been accepted iu subequent decisions.

8. In Bin Bikram Kishsore v. Ambika Charan A.I.R. 1926 Cal. 1037 it was held that in an application under Section 105, Ban. Ten Act, it is not necessary for the landlord or the tenant to name any person as opposite party and that all that is necessary is to indicate the holdings in the record in respect of which settlement of fair and equitable rent is sought. This view has been endorsed by the Chief Justice and D.N. Mitter, J., in Siba Kumari v. Doshi Ghosain : AIR1928Cal146 . Whatever view I might have previously expressed in the matter, on reconsideration I think that the interpretation put upon the law in these later cases is correct. It seems tome that an application under Section 105, Ben. Ten. Act, or even a suit under Section 106, Ben. Ten. Act is in the nature of continuation of proceedings in connexion with the preparation of Record-of-Rights. Section 105 says that within two months from the date of the certificate of the final publication of Record-of-Rights the landlord or the tenant may apply for settlement of fair rent ; and Section 106 provides that in proceedings under Part 3 which deals with settlement of rent and decision of disputes a suit should be instituted within three months from the date of the cer-tificate of the publication of the Record-of-Rights relating to the disputes mentioned in that section. Both the application and the suit are to be filed and instituted before the Revenue Officer and these proceedings come under Chap. 10, Ben. Tea. Act, which is headed as ' Record-of-Rights and settlement of rent.' Whatever may be said with regard to the application under Section 105 without naming any party against whom it is directed, the, requirement of the law to my mind is satisfied if the application is made by a party to the Record-of-Rights against a party in whose favour an entry has been made in the Record-of-Rights. In this view the third preliminary objection must fail.

9. Now, certain special grounds have been taken in some of these appeals. In second appeal No. 1661 the objection taken is that the view of the lower Court that the ekrar filed in that case showed variation of rent is not correct. A translation of the ekrar has been placed before us and we are satisfied thad the view taken by the-Courts below is justified. The ekrar shows that the defendants' predecessors applied for settlement of the lands in suit held by the late tenant Gour Mondal for a period of ten years and there was a stipulation to the effect that after the expiry of the term there should be a subsidiary settlement with the tenant. Reading the ekrar as a whole it appears that it was an agreement for fresh settlement in respect of a holding which previously stood in the name of another tenant.

10. In the second appeal No. 1656 the ground taken is that the kabuliyat upon which the Courts below have relied as showing variation of rent has been misconstrued. The kabuliyat, however, shows that the land was purchased in execution of a rent decree of which the landlord was in khas possession by taking delivery of possession through Court. It was resettled with the appellant's predecessor together with another plot of land at a jama which was not the same as had been paid by the original tenant. This objection also fails.

11. With regard to the other cases a general ground has been taken that the decrees upon which the Court below have relied to prove variation of rent do not relate to the holdings in suit. This ground was not taken in any of the Courts below nor has it been taken specifieially in this Court in the memorandum of appeal. It is very difficult for the second Court of appeal to determine a question which mainly depends upon facts. It is possible that no objection was taken upon this ground at the trial Court because it was understood by both parties that the decrees related to the jamas in suit or it may be that the landlords' papers showed that the old jama as mentioned in the decrees continued in the names of the appellants. We cannot give effect to this contention at this stage of the litigation.

12. In second appeal No. 1663 the objection taken is that the Special Judge has not considered the Special features of this case and has not come to any finding with regard to them. This objection has substance in it. It appears that the learned Judge has confined his attention mainly to the question about the tenancy being held at rates fixed in perpetuity or otherwise. He has not considered the preliminary objections to which I have referred at length before, which in the face of them do not seem to be entirely frivolous. The learned Judge ought to have dealt with the points raised in these cases and should not have contented himself by observing that the preliminary points were rightly dismissed. A party in the first Court of appeal expects that all the objections which he has taken to the decree should be considered by the appellate Court in the same way as they were considered by the trial Court. In this appeal the defendant filed very old rent receipts which show that the same jama continued for about 50 years. The trial Court discarded the presumption raised by this fact by making reference to the plaintiff's papers which showed that the rent of these holdings was at some time reduced. This is a matter which ought to have been examined by the lower appellate Court and we think that in this case the learned Judge has not given that consideration which the special facts deserved. We accordingly, set aside the judgment of the lower appellate Court in this case and send the case back to that Court for a re-hearing of the appeal.

13. In second appeal 1742 which forms one of this batch the ground taken is that the tenant should have been recorded as raiyat and not as tenure-holder, as was done by the Assistant Settlement Officer. In the finally published Record-of-Rights the tenant was described as a tenure-holder. The trial Court held that the tenant had adduced no evidence to rebut the presumption of the correctness of the entry in the Record-of-Rights. We cannot say that the Court was not justified in holding that the tenant was a tenure-holder relying solely upon the Record-of Rights without any evidence to controvert it. This point moreover was not taken before the learned Special Judge and is not mentioned in his judgment. This appeal also fails. The result is that all the appeals of this group fail and are dismissed with costs, one gold mohur in each case except No. 1663 which is remanded to the lower appellate Court for further hearing ; costs to abide the result, hearing fee one gold mohur.

Second Appeals Nos. 1726 to 1733.

14. In this group of eight cases the same preliminary objections are urged as were taken in the other group of cases compromising second appeals Nos. 1656 to 1663. It is not necessary to repeat the grounds which have induced us to overrule all those objections and they are accordingly overruled. In second appeals Nos. 1726 and 1731, it is stated that applications under Section 105 were made against dead persons. We have already dealt with this point and it need not be further considered. This objection cannot prevail. In No. 1726 a special ground is taken that the learned Judge is wrong in saying that the tenants have not produced rent-receipts showing uniform payment of rent for a period of more than 20 years. It has been pointed out that certain rent-receipts Exs. D17 --D40 were filed by the appellant which are more than 20 years old. The learned advocate for the respondent has answered by saying that there is nothing on the record to show that the rent-receipts D17--D40 related to this holding. These rent-receipts stand in the name of one Joy Gopal Chakravarti and the holding in suit stands in the name of Hochan Mondal. There is no evidence as to how Hochan Mondal succeeded to the jama held by Joy Gopal. It has further been brought to' our notice that no specific ground has been taken in the grounds of appeal filed in this Court though subsequently the appellant served the respondent with a copy of the ground relating to this objection which he intended to urge at the hearing. This objection fails.

15. Objection has also been taken that the decrees relied on by the Courts below have not been proved to relate to the holdings in suit. We have dealt with 'this objection in the other cases and overrule it on the sane grounds.

16. A great deal has been said in connation with these cases as well as in the cases of the other batch which we have just disposed of with regard to the jama wasil baki papers produced by the plaintiff and proved on his behalf. It is said that these papers under the law are only admissible in evidence if they are corroborated under Section 34, Evidence Act. It is, however, conceded that these papers may be proved in evidence under Section 32(2), Evidence Act, without any on roboration. The evidence is that these papers were of the time of the previous landlords which came into the hands of ;the respondent after his purchase. 'There is further evidence that many of the gomasthas of the previous landlord are dead. We are not in a position to ascertain as to whether the papers were written by any of those persons. Thore is nothing to show that the papers wore in the hand of any one now living, These papers are about 45 years old and a Court of fact, may in the circum-stances of a particular case presume that the writer was dead at the time they were produced. In Dukha Mandal v. W.N. Grant [1912] 16 C.L.J., entries in papers began over 70 years before the action was tried, and it was presumed that the person who made them was dead and could not be called. A Court of fact, in a proper case may raise such a presumption also in this case. But the point does not seem to have boon taken in any of the Courts below. Whore admissibility of a certain document rests upon, facts which need to be proved, the proper place to take objection is the trial Court where the document is admitted. In the present case it may be the Courts below presumed that the writers of the papers were dead. We cannot allow this ground to be taken for the first time in second appeal. This objection also fails. In the result all these appeals are dismissed with costs--one gold mother in each case. The respondent has filed cross-objections in both the batches of cases and does not press them at the hearing. They are dismissed.

17. In Second Appeal No. 1742 the cross-objection has been pressed and it is to the effect that the calculation made by the learned Judge as to the division of assets of the tenure is not correct on the facts of the case. The learned Special Judge has deducted 10 per cent, from the gross assets under the heading of collection charges. Of the balance that is left over he has allowed 40 per cent, to the tenure-holder and 60 per cent, to the landlord. The trial Court allowed 65 per cent, to the landlord upon the gross assets. Under Section 7, Ben. Ten. Act, the profit left to the tenure-holder should not be loss than 10 per cent. In the present case the learned Judge has allowed him about 50 per cent, including the collection charges. The proportion generally allowed in this Court is 40 per cent, to the tenant and 60 per cent, to the landlord. We accordingly modify the decree of the lower appellate Court and order that in this case the rent of the landlord be assessed at 60 per cent of the total assets found by the Court below. We allow the cross-objection, but we make no orders as to costs.


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