WOOMESH CHANDRA DATTA CHOWDHURY Vs. JABED ALI

JUDGEMENT

(1.) These appeals are by the plaintiff in a suit for recovery of arrears of rent of two under- tenures. Admittedly these two under-tenures were held by the defendants under a tenure owned by one Durga Charan Guha Thakurta. Durga Charan died in October 1920, leaving a will and two sons, Haran and Rajendra. By his will he appointed his son Haran and one Nibaran Chandra Ghosh as joint executors. The executors applied for the probate of the will and on 26 February 1921, the application was allowed. The executors however did not obtain the grant of the probate till 20 January 1925.

(2.) The landlords of Durga Charan's tenure had instituted a suit for recovery of arrears of rent of the tenure against Durga Charan during his lifetime and obtained a decree in that suit before his death. They took out execution of this decree after his death making his two sons parties to the execution proceeding as his legal representative, and in this execution case put the tenure to sale under ch. 14, Ben. Ten. Act. The sale was held on 3 February 1923, and some Sarkars were the auction purchasers. It may be noticed that Haran, one of the executors, was party to this execution proceeding; but no objection was taken to the execution on the ground that Durga Charan left a will and that his two sons were not his legal representatives. After this sale and before obtaining the grant of the probate the executors of the will of Durga Charan sold the tenure to one De Cilva on 13 June 1924. Later on, the plaintiff purchased the tenure from De Cilva. The claim for rent in the present suit relates to the period from Baisakh 1341 B.S. to Poush 1344 B.S (i. e. April 1934 to January 1938).

(3.) Defendants l, 4, 12, 19 (ka) and 24 contest the claim. Their defence inter alia is (1) that the plaintiff acquired no title to the tenure by his purchase, (2) that there is no relationship of landlord and tenant in respect of the under-tenure between the plaintiff and the defendants, and (3) that the Sarkars, the fraction purchasers of the tenure, were their landlords and they realised rent for the period from the defendants, It transpired in evidence that on two previous occasions the plaintiff obtained two decrees for arrears of rent of this under-tenure against these defendants in his rent suits Nos. 750 of 1925 and 126 of 1929. The Sarkars were no parties to these suits. The plaintiff contends that so far as the present defendants are concerned these decrees would bar the issue as to relationship of landlord and tenant between the plaintiff and the defendants by the principle of res jndicata. It appears that the Sarkars also obtained a decree against these defendants in their rent suit No. 137 of 1931 without im- ploading the plaintiff as party in that suit. The defendants contested the claim of the Sarkars up to this Court but ultimately failed. The learned Munsif dismissed the suit holding that no relationship of landlord and tenant subsisted between the parties in respect of the disputed jamas. He found that the under-tenure of the defendants was sold away in 1930, in execution of the plaintiff's decree in his rent suit No. 126 of 1929, and that as the result of this sale the relationship of landlord and tenant between the plaintiff and the defendants, even if it ever existed, came to an end. On appeal by the plaintiff, the learned Additional District Judge held that the two sons of Durga Charan fully represented the tenure in the execution proceeding find consequently by the sale held in the execution proceeding in question the tenure it-self passed to the Sarkars. The plaintiff's vendor De Cilva and the plaintiff by his purchase from De Cilva therefore acquired no title to the tenure. He therefore affirmed the decision of the Court of first instance.