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Gangamani Biswas Vs. Rabja Ali Chaukidar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1924)ILR51Cal935
AppellantGangamani Biswas
RespondentRabja Ali Chaukidar
Cases ReferredProfulla Chandra Ghosh v. Baburam Mandal
Excerpt:
rent decree - requisites of--auction purchaser--incumbrance, annulment of--bengal tenancy act (viii of 1885) sections 148a, 167. - .....the suit in execution of the decree under which the plaintiffs purchased the property was a rent suit coming within the provisions of section 148a of the bengal tenancy act so as to ming into operation all the rights which a purchaser obtains at a sale in execution of a rent decree under that act.2. we have been led through the plaint in the rent suit the material portion of which is contained in paragraphs 4 and 6. in paragraph 4 the plaint stated that the rent in arrears due to the plaintiffs alone, who were co-sharer landlords was a certain amount and it also stated that the tenant defendants' dues to the co-sharer defendants nos. 2 to 5 for the period in suit may amount to a certain amount. in paragraph 6 it was stated that on account of information having been withheld from.....
Judgment:

Newbould and Ghose, JJ.

1. This appeal is by the plaintiffs and arises out of a suit for possession of certain land by avoiding an encumbrance under Section 167 of the Bengal Tenancy Act. The whole question depends upon the fact whether the suit in execution of the decree under which the plaintiffs purchased the property was a rent suit coming within the provisions of Section 148A of the Bengal Tenancy Act so as to Ming into operation all the rights which a purchaser obtains at a sale in execution of a rent decree under that Act.

2. We have been led through the plaint in the rent suit the material portion of which is contained in paragraphs 4 and 6. In paragraph 4 the plaint stated that the rent in arrears due to the plaintiffs alone, who were co-sharer landlords was a certain amount and it also stated that the tenant defendants' dues to the co-sharer defendants Nos. 2 to 5 for the period in suit may amount to a certain amount. In paragraph 6 it was stated that on account of information having been withheld from the plaintiffs the plaintiffs tentatively claimed the amount due in their own share and paid court-fees thereon. There was a prayer (ga) which ran thus: 'if the co-sharer landlords defendants pray to the Court to be added as plaintiffs or if they or the tenants defendants declare in Court the amount due in their share, to add the said amount to the claim and pass a decree for the total amount against the tenants defendants after receiving the deficit court-fees on such additional amount.' It is contended that this plaint was in accordance with the provisions laid down in Section 148A of the Bengal Tenancy Act applying to East Bengal. This section requires that the co-sharer landlord should institute a suit to recover the rent due to all the co-sharer landlords in respect of an entire holding, and it is also necessary that all the remaining co-sharers should be made parties to the suit, and if he is unable to ascertain what rent is due for the whole tenure or holding owing to the refusal or neglect of the tenant or of the co-sharer landlords to furnish correct information the plaintiff co-sharer landlord shall be entitled to proceed with the suit for his share only of the rent. The first requisite is that the co-sharer landlord should sue for recovery of the rent due to all the landlords, and, secondly, if he is unable to find out the dues to the other co-sharers he would be entitled to proceed with the suit for his share only.

3. In the present case the plaintiffs sue for their share of the real: alone, and they state that a certain amount might be due to the co-sharer landlords and the prayer is that under certain conditions stated in prayer (ga) a decree for the total amount due might be passed. This in our opinion is not in accordance with Section 148A of the Act. Several cases have been cited before us of which we need mention only the last, which is the case of Profulla Chandra Ghosh v. Baburam Mandal (1921) 34 C.L.J. 462, on which the learned vakil for the appellants contends that the plaint in this case should be considered to be one in accordance with Section 148A. But in all those cases the learned Judges clearly point out that the plaintiff brought the suit for the entire rent which he believed to be due for the holding when he brought his suit. We do not think that the plaintiffs in the present case framed their suit in that way. It has been contended before us that it is in substance incompliance with the requirements of Section 148A. But having regard to the fact that these special provisions of the Bengal Tenancy Act enable the purchaser to defeat the right of a person who was no party to the rent suit we think that substantial compliance with the requirements of the section, assuming it to be so, would not be enough to give the auction purchaser a title to annul the incumbrance, but the terms of the section should be strictly complied with. As that has not been done in this case we are of opinion that the judgment of the lower Appellate Court is right and the appeal must be dismissed with costs.


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