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Kirtibash Modak and ors. Vs. Rakhal Majhi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1939Cal368
AppellantKirtibash Modak and ors.
RespondentRakhal Majhi and ors.
Excerpt:
- .....had not been made parties to the suit. they contended that all the landlords not having been made parties, the suit was bad as it did not comply with the provisions of section 148-a(1), ben. ten. act. at the time of hearing the other usufructuary mortgagees whose names are amulya majhi, ram pada majhi and rali pada majhi appeared as witnesses and disclaimed all interest in the mortgage. they stated that they were benamidars of the plaintiff and that they had no interest in the rent payable to the plaintiffs. the trial court, despite this admission by these persons, held that the suit was bad and dismissed it. an appeal was taken to the district judge. the subordinate judge who heard the appeal has held that the plaintiffs are entitled to a decree. his judgment is by no means clear but.....
Judgment:

Sen, J.

1. This appeal arises out of a suit for rent. The defendants are the appellants. The point for determination is fairly simple. Certain persons filed this suit for rent against the defendants on the footing that they were usufructuary mortgagees. The defendants raised various defences but only one of these defences need be considered at this stage. The defendants stated that the suit was bad for defect of parties, inasmuch as some of the other usufructuary mortgagees had not been made parties to the suit. They contended that all the landlords not having been made parties, the suit was bad as it did not comply with the provisions of Section 148-A(1), Ben. Ten. Act. At the time of hearing the other usufructuary mortgagees whose names are Amulya Majhi, Ram Pada Majhi and Rali Pada Majhi appeared as witnesses and disclaimed all interest in the mortgage. They stated that they were benamidars of the plaintiff and that they had no interest in the rent payable to the plaintiffs. The trial Court, despite this admission by these persons, held that the suit was bad and dismissed it. An appeal was taken to the District Judge. The Subordinate Judge who heard the appeal has held that the plaintiffs are entitled to a decree. His judgment is by no means clear but in my opinion the conclusion at which he has arrived is correct. The persons, the according to the defendants, should have been made parties to the suit have appeared and disclaimed all interest. The plaintiffs state that they alone were the mortgagees and that they alone were entitled to the rent. Amulya Majhi, Eampada Majhi and Kalipada Majhi support the plaintiffs. In this state of the evidence the trial Court should have come to the finding that the plaintiffs are the only landlords, that the other persons appearing as mortgagees on the deed were in fact not mortgagees and that therefore they were necessary parties to the suit. In these circumstances, I am of opinion that the pro. visions of Section 148-A(1), Ben. Ten. Act, have not been violated. The suit has been properly constituted as all the landlords are parties. That being so the decree of the lower Appellate Court must be upheld and this appeal must be dismissed with costs.


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