RABINDRA MANDAL Vs. CKNAG AND SONS LTD

JUDGEMENT

(1.) This appeal is on behalf of the heirs of defendant 1. It related to two plots bearing c.s. dags Nos. 1192 and 1196 of Mouza Ramkrishnapur. The plaintiffs brought this suit for declaration of title and for recovery of possession with a prayer for mesne profits. The facts are that under the Said pur Trust Estate, a patni was created in the year 1821 in favour of Gopi Roy and Robi Roy. In course of time this patni devolved on plaintiffs 1 and 2. Within the patni there was a ganti created by a lease of the year 1879 which was held by one Amritalal Joddar and his co-sharers at a rent of Rs. 337-8-0. This ganti was recorded in C.S. Khntian No. 95. The ganti was purchased in course of time by plaintiffs 1 and 2. Within the ganti there was a dar-ganti bearing a rental of Rs. 543-12-0 which was held by Ramkrishna Goldar and others. This dar-ganti was recorded in Khatian No. 176. In the year 1934, plaintiff 1 and pro forma defendants 2 to 4, who were predecessors-in-interest of plaintiff 2, instituted a suit for enhancement of rent against the dar-gantidars. This suit was numbered as rent Suit No. 2 of 1934 and was decreed, the decree being Ex. B. Against the decree of the trial Court, an appeal was taken by tenaxits defendants Ramkrishna Goldar and others to this Hon ble Court resulting in First Appeal No. 181 of 1934. Ultimately this appeal was disposed of on the basis of a petition of compromise, which is marked Ex. 7a and the decree that was passed on compromise is Ex. 7. I shall have to refer hereafter to the terms of this decree. This decree was executed in a rent execution case No. 8 of 1936. The dar-ganti was put up to sale and was purchased by plaintiff 1 and pro forma defendants 2 to 4 i.e. predecessors of plaintiff 2 on 20 April 1936. The sale certificate is Ex. 5. Possession was taken through Court on 23rd June 1930 Within the dar-ganti there was a tenancy (the incidents whereof are now in dispute) bearing a rental of Rs. 125 later on increased to Rs. 406-10-0 and was held by defendant 1 the predecessor-in-in-tarest of the present appellants. The notice under Section 167, Ben. Ten. Act, was served by the plaintiff on defendant 1 on 6 December 1936. The plaintiff being resisted in taking possession by defendant 1 started the present suit with the prayers stated already.

(2.) The material defence of defendant 1 is that the decree Ex. 7, had not the effect of a money decree and therefore, the plaintiffs by their own purchase did not acquire the rights conferred on purchasers under Section 159, Ben. Ten. Act. A further defence was that the interest of defendant 1 was that of an occupancy raiyat and was a protected interest under the Bengal Tenancy Act.

(3.) The Courts below have decreed the plaintiffs suit. Against the concurrent, judgments of the two Courts the heirs of defendant 1 have preferred this appeal.