Decided on March 18,1960



P.N.Mookerjee, J. - (1.) The appellants before me were the defendants in a suit for assessment of fair and equitable rent for the suit land. According to the plaintiffs, they derived title to the suit lands through one Swar-namoyee, their predecessor-in-interest. In the plaint, the case was made that Swarnaraoyee auction-purchased the suit property along with some other plots in the benami of her son Nani Gopal Ganguli. The said auction sale was held in Sep-tember 1904 and it is the case of the plaintiffs that, subsequently, the suit lands were let out to the defendants by Swarnamoyee, but the rent was not assessed. On this allegation, the present suit was brought for assessment of fair and equitable rent.
(2.) The defence was a denial of the plaintiffs' title on the ground that Nani was not the benamidar of Swarnamoyee, but was the purchaser for himself, and that, with Nani, the defendants' predecessor entered into an agreement for purchase of the suit land and made certain payments thereon, and, thereafter, after Nani's death, upon payment of the balance of the consideration money to Nani's widow Batashi, who was the pro forma defendant in the present suit, they acquired title to the disputed property by purchase.
(3.) The trial Court, primarily, upon the view that the plaintiffs' claim of title would be hit by sec. 66 of the Code of Civil Procedure, at any rate, dismissed the suit on that ground, although, accepting the plaintiffs' case on the other point, that the defendants were mere settlement-holders from Swarnamoyee and could claim no title by reason of any sale from Batashi on the basis of any agreement for sale with Nani. In other words, the defendants' story, in this respect, was disbelieved by the trial Court. The lower Appellate Court appears to have been of the same opinion on this last question and, according to it also, the defendants were tenants, let in on the disputed land by Swarnamoyee. On the other question, namely, as to the bar under sec. 66 of the Code of Civil Procedure, the lower appellate Court was of the view that, as the sale, in this particular case, was in the year 1904 and as it had been affirmed also in that year and the purchaser went into possession immediately, the present Code of Civil procedure, which came into operation in the year 1908, would not apply to this case and, under Section 317 of the old Code the present suit would not be barred, although it might have been barred, it the new sec. 66 had applied. The lower appellate Court, accordingly, held that the suit was maintainable and the defendants being tenants whose rent had not been assessed, it went into the question of assessment of rent and, having found that Rs. 15/- per annum would be the proper rent for the disputed land, assessed the rent at that figure and also gave the plaintiffs a decree for what it wrongly described as mesne profits at the said rate for three years, prior to the suit, namely, from 1355 to 1357 Aswin,B.S.;

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