Decided on August 31,1950



Jagannadhadas, J. - (1.) This is an appeal by defendants 2 to 4 lessees from defendant 1, against an order of remand by the lower appellate Court. The plaintiff brought a suit for Thakur represented by a Marfatdar. The plaintiff is the landlord of the Touzi to which this Lakhraj land, was attached for purposes of road-cess Under Section 85, Bengal Cess Act. The Lakhrajdar, defendant 1 fell into arrears with reference to road-cess for the year 1940.41. Under Schedule 7 of the Cess Act the Touzidar is entitled to recover such arrears as arrears of rent. The plaintiff accordingly filed a suit for the said arrears, obtained a decree and purchased the property in execution sale of, the said decree. He got delivery in pursuance thereof on 11-4-41. Defendant 1 through his Marfatdar, had previously created in favour of defendants 2 to 4, a permanent lease dated 28-8-37, marked, ex. a. The plaintiff claims to recover possession of the land covered by the permanent lease on the footing that by virtue of his purchase in court auction the prior permanent lease has become annulled and that therefore he is entitled to recover possession free of that lease. In the alternative, he claims that the lease was created by the Marfatdar of the deity without any legal necessity and that he is entitled to prove the same and got the land freed from the permanent lease on such proof.
(2.) The trial Court held that the plaintiff did not obtain any first charge by virtue of the purchase which he took in execution of the decree for arrears of road- cess and that therefore he cannot treat the previous permanent lease as annulled. He also held that since he has purchased only the right, title and interest of defendant l as on the date when he obtained the decree, he was not entitled to question the validity of the prior lease created by defendant 1. The suit was accordingly dismissed.
(3.) The plaintiff appealed to the lower appellate Court. On appeal the point relating to the annulment of the prior permanent lease as the legal result of his purchase in execution of the decree for arrears of road-cess does not appear to have been seriously pressed. The point which appears to have been argued is as to the locus standi of the plaintiff to question the validity of the permanent lease on the ground that it was not executed for legal necessity.. The learned appellate Judge was of the opinion that the plaintiff was entitled to challenge the validity. But in view of the fact that the question as to the existence or otherwise of the legal necessity did not form the subject-matter of a specific issue and trial, though raised in the pleadings, be, at the request of both parties, remanded the case to the trial Court in order that an issue about the question of legal necessity may be framed and tried and decided. It is against this order of remand that defendants 2 to 4 have come up in appeal before us.;

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