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Nijibal Islam Molla Vs. Golam Afsar Molla and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1934Cal277
AppellantNijibal Islam Molla
RespondentGolam Afsar Molla and ors.
Cases ReferredKailash Chandra v. Gopal Chandra
Excerpt:
- .....3. according to the plaintiff, the lands appertaining to the tenancy were sold in execution of a rent decree obtained by him, in which defendant 1 in the present suit was made a defendant, as a co-sharer landlord, with a view to the plaintiff's obtaining an effective rent decree, in execution of which the tenancy could be sold. defendant 1, it appears, obtained a kabula from gandhari bewa, the tenant, before the tenancy was put to sale in execution of the decree for rent obtained by the plaintiff against gandhari bewa. it further appears that a suit brought by defendant 1 for a declaration that the sale in execution of the decree for rent obtained by the plaintiff was not binding on him was dismissed. defendant 1, however, succeeded in getting possession of the lands in suit, after.....
Judgment:

1. The plaintiff in the suit, in which this appeal has arisen, prayed for khas possession of the lands in suit, appertaining to a tenancy held at one time by Gandhari Bewa, predecessor-in-interest of defendants 2 and 3. According to the plaintiff, the lands appertaining to the tenancy were sold in execution of a rent decree obtained by him, in which defendant 1 in the present suit was made a defendant, as a co-sharer landlord, with a view to the plaintiff's obtaining an effective rent decree, in execution of which the tenancy could be sold. Defendant 1, it appears, obtained a kabula from Gandhari Bewa, the tenant, before the tenancy was put to sale in execution of the decree for rent obtained by the plaintiff against Gandhari Bewa. It further appears that a suit brought by defendant 1 for a declaration that the sale in execution of the decree for rent obtained by the plaintiff was not binding on him was dismissed. Defendant 1, however, succeeded in getting possession of the lands in suit, after they were sold in execution of the rent decree against the tenant Gandhari Bewa. The sale in execution of the decree in favour of the plaintiff, at which the plaintiff was the purchaser, was held on 16th July 1919, and it was confirmed on 4th September of that year.

2. The suit out of which this appeal has arisen was instituted by the plaintiff on 6th October 1928. In view of the question for consideration in this appeal by the plaintiff, whose suit has been dismissed by the Courts below, on the ground that Section 47, Civil P. C., was a bar to the same, it is not necessary to consider the defence of the contesting defendants in the suit, other than the one raised by defendant 1. The defence raised by this defendant was that the plaintiff as a decree-holder auction-purchaser should have come in under Section 47, Civil P. C., for possession of the lands in suit, and as such, the suit as instituted by the plaintiff was not maintainable.?

3. The Courts below have, on the authority of the decision of a Full Bench of this Court in Kailash Chandra v. Gopal Chandra AIR 1926 Cal 798, held that the question for determination in the present case was a question arising between parties to the suit for rent brought by the plaintiff, and was also a question arising between parties relating to the execution, discharge or satisfaction of the decree obtained by the plaintiff; and, as such, it was incumbent upon the plaintiff, the decree-holder auction-purchaser, to come in by a proceeding under Section 47, Civil P. C., for delivery of possession, and he not having done so, the suit, as instituted, was not maintainable, and was, in that view of the case, dismissed.

4. There is no doubt that the suit, as between the plaintiff and defendants 2 and 3 was concerned, was clearly barred, as they were the representatives of Gandhari Bewa, the tenant against whom the decree for rent was obtained by the plaintiff, and the lands appertaining to which were in due course purchased by the plaintiff at a sale in execution of the rent decree. The question arising for consideration in this appeal is whether defendant 1 in the suit could raise the defence that the plaintiff's suit for possession against him was not maintainable, regard being had to the provisions contained in Section 47, Civil P. C. In the absence of any authority of decided cases bearing on the subject, the point has to be decided as a question of first impression, the decision depending mainly upon the statutory provision as contained in Section 47, Civil P. C. The position has to be kept in view that defendant 1 was made a party defendant in the suit for rent, brought by the plaintiff against the tenant Gandhari Bewa, for the purpose of obtaining an effective decree for rent, regard being had to the provisions contained in Section 148-A, Ben. Ten. Act. There is no doubt that defendant 1 was a party to the suit for rent, and a necessary party too, according to the provisions of the law, to which reference has just been made. The question arising for determination in the present case, therefore, was a question between the parties to the suit for rent or their representatives.

5. The material question then is whether the relief claimed by the plaintiff related to execution, discharge or satisfaction of the decree for rent, as contemplated by Section 47, Civil P. C. In our judgment, the answer to the question must be in the negative. As between the plaintiff, who succeeded in obtaining a decree for rent against the tenant, and defendant 1-a co-sharer landlord, who was joined as a party defendant in the suit for rent for satisfying the requirements of law, as contained in Section 148-A, Ben. Ten. Act- there could not be any, and there was no question relating to the execution of the rent decree, nor was there any question relating to the discharge or satisfaction of the rent decree. The decree was for rent, and the liability to satisfy the decree was in the tenant defendant or her representatives, and not in defendant 1, the co-sharer landlord. If therefore there was no liability in defendant 1 to satisfy the decree for rent, as there was none, no question of execution, discharge or satisfaction of the decree could possibly arise as between the plaintiff on the one hand and defendant 1 on the other. In the above view of the point arising for consideration in the case before us, the decision of the Full Bench of this Court in Kailash Chandra Tarapdar's case AIR 1926 Cal 798, referred to above, has no application; and we fail to appreciate how reliance could be placed on the same by the Courts below.

6. As indicated above, the suit for khas possession, as brought by the plaintiff, so far as it was directed against defendant 1, could not be held to be one barred by the provisions contained in Section 47, Civil P. C. The decision given against the plaintiff-appellant in this Court, dismissing his suit, must accordingly be set aside and we direct that the plaintiff's suit be tried out, on the merits, in accordance with law. In the result the appeal is allowed, and the case is remanded to the Court of first instance for trial. The plaintiffs-appellants are entitled to get their costs in the litigation up to the present stage, including the costs in this appeal. Future costs after remand will be at the discretion of the trial Court.


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