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Ananga Mohan Roy Choudhury Vs. Khaje Habibulla - Court Judgment

LegalCrystal Citation
Subject Tenancy
CourtKolkata
Decided On
Reported inAIR1931Cal673
AppellantAnanga Mohan Roy Choudhury
RespondentKhaje Habibulla
Cases ReferredKhiarajmal v. Daim
Excerpt:
- .....instance having decided on it, it was incumbent on the lower appellate court to have decided these rent suits after investigating the question of title as between the plaintiff and the second set of defendants. the lower appellate court evidently proceeds on the view that the rule that in a simple rent suit the question of title should not be agitated should be given effect to. but it seems to me on examination of the authorities which have been placed before me that there is no such rigid rule. the authorities seem to suggest that where the question is raised at the instance of the tenant and the tenant pleads that rent is not due to the plaintiff but to a third party and his plea involves the complicated question of title, it may be wise for the court not to enter into it. in these.....
Judgment:

Mitter, J.

1. These two appeals arise out of two suits brought by the plaintiff against the tenants under a patni in which the plaintiff claims to hold an eight annas share. To the suits Nawab Habibulla and others have been added as parties defendants as they are said to have purchased the eight annas interest in the patni of the other cosharers. It appears that the defendants Habibulla and others are the proprietors of an estate under which there was a patni which was held by one Abinash Chandra to the extent of eight annas share and Kiron Bala to the extent of the other eight annas. Abinash died leaving a will by which Kumudini is said to have obtained absolute interest in the patni. Abinash left behind him a son Abani and a grandson Ananga who is the plaintiff in these two suits. Kumudini dedicated eight annas of the property by a will to an idol Mahadeb which was installed by her and appointed the plaintiff-appellant as the shebait of. the deity. Nawab Habibulla and others brought a suit for rent in respect of the patni against Kumudini and Kiron Bala. On Kumudini's death during the pendency of the suit the Nawab brought on the record the son of Kumudini and the present plaintiff her grandson as the legal representatives of Kumudini, and it appears that a decree was passed against Abani and the present plaintiff some time after the death of Kumudini. It may be mentioned here that Kumudini appointed several executors by her will besides the present plaintiff. The other executors wanted to intervene in the rent suit. This was objected to by the Nawab with the result that 'the decree was obtained against Abani and Ananga as representing the eight annas share of Kumudini and Kiron Bala, the holder of the other eight annas share of the patni. In execution of this rent decree this patni was sold and was purchased by the Nawab for Rs. 27,500.

2. The two suits in which these appeals arise were instituted by the present plaintiff against the tenants of the patni on the allegation that his rights as holder of the eight annas share as the sole executor of Kumudini's estate (he having been appointed the solo executor by arrangement between the other executors) have not been affected by the sale in execution of the decree for rent and that the interest of the idol whom ho represents is in no way affected by the sale. The Nawab of Dacca has been made a party defendant as holder of the other eight annas share of Kiron Bala by right of purchase, and this suit seems to be one framed under Section 148-A, Ben. Ten. Act, There is an alternative prayer that if the cosharer landlords have made any collections from the tenants a decree might be passed against them for the amounts collected. The defence of the Nawab to these suits is that the entire patni passed by the sale and that the present plaintiff has no title to the patni and is not therefore entitled to get rent from the tenants under the patni. The first Court went into the question of title it seems to be with some reluctance. But as both parties apparently invoked the decision on the question of title the Court of first instance decided it and came to the conclusion that the plaintiff was entitled to get eight annas share of the rent as his rights as executor and shebait had not been affected by the sale.

3. Two appeals were taken in these two suits to the Court of the Subordinate Judge of Tippera and the learned Subordinate Judge has reversed the decision of the Munsif in these two suits and has dismissed the plaintiff's suits after reaching the conclusion that in a simple suit for rent a complicated question of title which had been raised by the plaintiff in his plaints could not be decided and that the suits as framed were not maintainable. He has not come to any conclusion on the question of title in the view which he took. In these two second appeals which have been preferred by the plaintiff a preliminary objection is taken on behalf of the respondents to the bearing of the two appeals on the ground that as the suits are valued at much less than Rs. 100 and as no question of title has been decided in these suits a second appeal is barred by reason of the provisions of Section 153,. Ben. Ten. Act. I think the preliminary objection is well founded, for it is clear on the decision of the Subordinate Judge that he had not decided the question of title which arose as between the plaintiff on the one hand and the Nawab on the other. If he had decided the question undoubtedly a second appeal would not be barred. But as he has refrained from deciding it no second appeal lies. The result is that these two appeals 371 and 372 must be dismissed.

4. The plaintiff anticipated to some extent the fate of these appeals and had put in two applications for revision in the alternative. It is complained on behalf of the plaintiff-appellant that the question of title having been drawn into controversy in the Court of first instance, and the Court of first instance having decided on it, it was incumbent on the lower appellate Court to have decided these rent suits after investigating the question of title as between the plaintiff and the second set of defendants. The lower appellate Court evidently proceeds on the view that the rule that in a simple rent suit the question of title should not be agitated should be given effect to. But it seems to me on examination of the authorities which have been placed before me that there is no such rigid rule. The authorities seem to suggest that where the question is raised at the instance of the tenant and the tenant pleads that rent is not due to the plaintiff but to a third party and his plea involves the complicated question of title, it may be wise for the Court not to enter into it. In these suits however the title of the plaintiffs to the eight annas share has to be determined in the presence of the other eight annas co-sharer who challenges the plaintiff's title to the eight annas. It has been recently pointed out in the judgment of the learned Chief Justice and Buckland, J., in Tinkari Bose v. Nagendra Prasad Basu A.I.R. 1923 Cal. 699 that there is no rigid rule of law that a question of title may not be raised in a rent suit. The lower appellate Court relied on the case of Lodai Mollah v. Kally Dass Ray [1881] 8 Cal. 238. But the true import of that case has been discussed in a subsequent case Indra Narain Manna v. Sarbasova Dasi : AIR1925Cal743 decided by Suhrawardy and Cuming, JJ., and there is nothing in Lodai Mollah's case [1881] 8 Cal. 238 which would seem to suggest that in the circumstances which exist in the present suits the Court should refrain from de-aiding the question of title.

5. It is true that suits for rent are of small value. That does not really affect the question, namely, as to whether in view of the circumstances of the present ease the question of title which has been determined by the Court of first instance should be determined by the Court of appeal or not. The learned senior Government pleader appearing on behalf of the respondents has pointed out that I ought not to interfere under Section 115, Civil P.C., having regard to the fact that delivery of possession was obtained after the sale and that the plaintiff in his personal capacity applied to set aside the sale under Order 21, Rule 90 and that he was a party to the suit in such capacity. It appears from the facts which I have already narrated above that the decree was obtained against persons who appeared subsequently did not represent Kumudini's estate. The decree is without jurisdiction.

6. The learned advocate for the respondents tried to bring the facts of this case within the decision of Malkarjun v. Narhari [1901] 25 Bom. 337 and said that the Court having decided as to who the legal representative of Kumudini is, the sale could not be regarded as void. It appears however that the case of Malkarjun v. Narhari [1901] 25 Bom. 337 is distinguishable in its facts. In that case the plea had been raised against a person whose estate was sought to be affected by the sale. The judgment-debtor died before full execution of the decree and the execution was taken against a person whom the Court erroneously held to be the heir of the judgment-debtor. Under those circumstances their Lordships of the Judicial Committee held that it was open to the Court to decide the issue as to who was the original heir of the judgment-debtor. The Court decided wrongly as to who was the right person representing the judgment-debtor, and in doing so the Court was exercising its jurisdiction. It made a sad mistake it is true, but the Court has jurisdiction to decide wrongly as well as rightly. If it decided wrongly the wronged party can only take the course to strike the law for setting matters right, and if that course is not taken the decision however wrong will not be disturbed., The present case seems to be one on the facts which have been stated before me where the decree is obtained not against the proper person who represents the estate and the estate is sought to be sold in execution of such a decree. The case rather falls within the principle laid down by their Lordships of the Judicial Committee in the case Khiarajmal v. Daim [1904] 32 Cal. 296.

7. Under these circumstances the proper order to make in those suits in the exercise of my powers under Section 115, Civil P.C., would be to make these rules absolute and to direct the Subordinate Judge to rehear the appeals on the merits. The question of law on which I have expressed an opinion proceeded on statements of facts which have been represented to me in this Court. The learned Subordinate Judge will investigate how far they are true and my statement of facts need not be regarded as conclusive, and after determining the facts he will apply the law. There will be no order for costs either in the appeals or in the rules.


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