MAN SINGH Vs. CHUNNI SINGH

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiffs-appellants for a declaration that defendant 1 had no right in execution of a decree against defendants 2 and 3, to get attached and sold the right to realize a sum of Rs. 190. The facts of the case are as follows:

(2.) Defendant 1 is said by the respondents counsel to be the zamindar; of the holding. Defendants 2 and 3 are the occupancy tenants. The plaintiffs obtained possession of the holding from defendants 2 and 3 under an agreement purporting to be a sub-lease, dated the 29 June 1921. This document recited that the plaintiffs should occupy the holding as sub-tenants of the defendants 2 and 3 on an yearly rental of Rs. 190. It recited further that no payment in cash or kind of the Rs. 190 should be made by the plaintiff to the defendants 2 and 3 but that this sub-rent, as soon as it became due, should be appropriated in the following manner: Rs. 51-12 were to be paid to the proprietor of the land as rent in chief by the plaintiff on behalf of the defendants 2 and 3. The remaining Rs. 138-4 were to be retained by the plaintiffs as payment towards advances made under simple money bonds, dated respectively 15 January 1917, and the 29 June 1921. At the end of five years the holding was to be given back by the plaintiffs to defendants 2 and 3, and there should be no accounting up to the end of the five years. Defendants 2 and 3 should have no right to get back the holding by redemption or otherwise and the plaintiffs should have no right to keep possession of the holding even if their money due under the money bonds had not been realized. On the 6 January 1922, defendant 1 got a simple money decree against defendants 2 and 3. It is said by his counsel that defendant 1(at present respondent) got this simple money decree as a decree for rent of the holding due to him as zamindar from defendants 2 and 3. He then attached the (liability assuming any liability existed) of the plaintiffs to pay sub-rent for the year 1329 to 1330 fasli of Rs. 190, a liability alleged to exist under the lease of the 29 June 1921. The plaintiffs objected to the attachment on the ground that the lease itself entitled them to appropriate the money in the way described above, that they had done so and that nothing remained which defendant 1 as zamindar could attach in payment of his decree against defendants 2 and 3. The objection was dismissed by the lower Court; hence this suit for declaration. It may be mentioned that, subsequent to the filing of this suit, the alleged liability of plaintiffs to pay Rs. 190 in respect of the year in question has been put up for sale and purchased by defendant 1.

(3.) The trial Court held that plaintiffs were entitled to the declaration inasmuch as under their lease they were not bound to pay any rent to the defendants 2,and 3. In first appeal this finding was set aside on the ground that the lease of the 29th June 1921, by the defendants 2 and 3 to the plaintiff was not sub-letting within the meaning of Section 24, Tenancy Act, and consequently it was a transfer of the interest of an occupancy tenant forbidden by law under Section 20, Tenancy Act. The lower appellate Court accordingly dismissed the suit.