HAJI MUNSHI JILLOR RAHMAN Vs. EBRAHIM KHAN

JUDGEMENT

(1.) A preliminary objection is taken to the hearing of this appeal on the ground that the appeal is incompetent under the provisions of Section 153, Bengal Tenancy Act. It is urged that the Courts below have decided no question relating to title to land or to any interest in land as between parties having conflicting claims thereto. The plaintiff brought this suit for rent on the footing that he was originally a co-sharer to the extent of 2 annas 3 pies in the estate within the ambit of which the land in question is situated. That share of the estate, it appears, had been sold under Act XI of 1859 for arrears of revenue. But the plaintiff claims that he is entitled to his original share in respect of the land, inasmuch as it is resumed chowkidari chakran land which he says did not pass at the sale. As defendants the plaintiff impleaded not only the tenant from whom the rent was claimed but also the purchaser of the share of the estate sold for arrears of revenue. A controversy no doubt arose between the plaintiff and the purchaser as to the title of the land; but under Section 153, Bengal Tenancy Act, it is not sufficient merely that there should be a controversy on the question of title, but the section requires that some question of title should be decided. On this point reference may be made to the case of Gangadhar Karmakar v. Shekharbasini Dasya 35 Ind. Cas. 348 : 24 C.L.J. 235 at pp. 240: 243 : 20 C.W.N. 967. A perusal of the judgments of the Courts below will show that the question of title though raised was not decided. The learned Munsif in the trial Court expressed himself thus: Considering the evidence on the record I am of opinion that the plaintiff was dispossessed from these lands by the auction-purchaser even if he had any separate right to these lands and the auction-purchaser has been in peaceful possession by receiving rents from the defendants and his possession should not be disturbed in these rent suits." The learned Subordinate Judge in the lower Appellate Court concurred generally with the Munsif and dealt in his judgment merely with the question whether the relationship of landlord and tenant existed between the plaintiff and the tenant defendants. He decided that question in the negative and passed over the question whether the plaintiff or the purchaser at the auction sale was entitled to the resumed chowkidari chakran lands. There is nothing, therefore, in the judgments of the Court below to prevent the plaintiff from raising this question of title again, if he be so advised, in a regular suit. In my opinion the preliminary objection must prevail and the appeal must be dismissed with costs.

(2.) This judgment governs second appeal No. 3253 of 1915. Beachcroft, J.

(3.) I agree.