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Hemanta Kumar Kar Vs. Birendra Nath Roy Choudhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal969,47Ind.Cas.1003
AppellantHemanta Kumar Kar
RespondentBirendra Nath Roy Choudhury and ors.
Excerpt:
bengal tenancy act (viii b.c. of 1885), section 149 - 'pleads', meaning of--suit by third person, whether rendered infructuous by plaintiff in rent suit obtaining decree--landlord and tenant--tenant proving registered kabuliyat--landlord, whether can show that he never accepted kabuliyat. - ......act.2. the facts are these. the defendant sued a person alleged to be his tenant for rent. the tenant pleaded that the present defendant was not his landlord but a third party was and, in compliance with the terms of section 149 of the bengal tenancy act, he paid into court the amount claimed for rent. thereupon the court directed notice to be served on the third party, that is, the present plaintiffs. the objections to the suit are these: it is said, first of all, that, in a former rent suit, the present defendant had recorded judgment against the tenant for rent and that, therefore, it is a case of res judicata and it is said that the word 'pleads' as used in section 149 means that the tenant sets up a valid plea or plea that is open to him in accordance with the law. it does not.....
Judgment:

Fletcher, J.

1. This is an appeal by the defendant against the decision of the learned Subordinate Judge of Pabna, dated the 20th September 1916, affirming the decision of the Munsif of the same place. It is stated that the suit is brought under the terms of Section 149 of the Bengal Tenancy Act. That is not strictly accurate. The suit goes far beyond the terms of a suit authorised by Section 149 of the Bengal Tenancy .Act.

2. The facts are these. The defendant sued a person alleged to be his tenant for rent. The tenant pleaded that the present defendant was not his landlord but a third party was and, in compliance with the terms of Section 149 of the Bengal Tenancy Act, he paid into Court the amount claimed for rent. Thereupon the Court directed notice to be served on the third party, that is, the present plaintiffs. The objections to the suit are these: It is said, first of all, that, in a former rent suit, the present defendant had recorded judgment against the tenant for rent and that, therefore, it is a case of res judicata and it is said that the word 'pleads' as used in Section 149 means that the tenant sets up a valid plea or plea that is open to him in accordance with the law. It does not mean anything of the sort. Plea means plea, pure and simple, whether good or bad. Whether it is good, bad or indifferent, if the tenant, hands in the amount claimed, the Court serves notice on the third party and, unless the third party brings his suit within three months, the plaintiff in the first suit is entitled to the money. There is nothing in the point that the word plea used in Section 149 means a valid plea or plea according to the provisions of the law.

3. The second point is a point which, if I may say so, is worthy of less respect even than the first. The plaintiffs in the present case brought the suit within the period mentioned in Section 149 of the Bengal Tenancy Act. Owing to the state of business prevailing in the Civil Courts in this country, the Court was not immediately able to give its consideration to the plaintiffs' case. In the meantime, the present defendant had managed to go on with his rent suit and to get a decree against the tenant and, therefore, it is said that the Court was incompetent to consider the present suit of the plaintiffs. That is clearly not so. Obviously, the parties are not responsible, at any rate, they cannot be held responsible, for the state of the delay that exists in the Civil Courts in this country.

4. Another point that is raised is that, in a suit under Section 149 of the Bengal Tenancy Act, the question of title cannot be gone into. But the decisions of this Court show that suits have been admitted both founded on the provisions of Section 149 of the Bengal Tenancy Act and also on the question of title, That being so, we must follow the established practice.

5. The last point on the merits is one that has less support than even the point of law that has been raised. The facts are these: The defendant's father wrote out and registered a kabuliyat relating to land belonging to the plaintiffs' father. The finding is that the plaintiffs' father, never assented to all the terms of the kabuliyat. The learned Vakil for the defendant-appellant says that his client's father having written out the document relating to the plaintiffs' land and having registered it--although the facts prove that the plaintiffs' father never assented to it--under the terms of the Registration Act, the .plaintiffs are precluded from giving oral evidence that their father did not assent to any document being executed by the defendant's father relating to the plaintiffs' land. It is quite clear that there is nothing in the Registration Act or the Indian Evidence Act prohibiting the plaintiffs from showing that the defendant's father was not authorised to deal with the land or that it was not accepted by the plaintiffs' father. In that view, the appeal fails and must be dismissed with costs.

Syed Shamsul Huda, J.

6. I agree,


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