Jogendra Nath Ghosh v. Paban Chandra Ghosh

This is an appeal in a suit for rent by a fractional proprietor. The allegations of the Plaintiff which have been held by the Munsif to be true are that the lands in respect of which the suit was brought belonged to two persons—Baikunta and Gobinda. Baikunta's interest was sold in execution of a decree and was purchased by the Plaintiff. The Defendant was the tenant of the entire holding and was bound to pay a half share of the rent to Baikunta, and on the purchase of his interest by the Plaintiff to the Plaintiff.

There was no question as to the rate of rent and no decision was arrived at as to conflicting title to the land, as Gobinda who was alleged by the Defendant to be the sole owner was not made a party to the suit. The short question raised and tried in the Munsif's Court Was—whether as between the Plaintiff and the Defendant there was the relationship of landlord and tenant as regards one-half of the Defendant's holding.

The Munsif on the findings of fact arrived at by him gave the Plaintiff a decree.

There was an appeal to the Subordinate Judge, but it has been dismissed on the ground that sec. 1-53 of the Bengal Tenancy Act, under cl. (6) of which the Munsif had the power of finally disposing of such cases, barred an appeal to the lower Appellate Court.

The present appeal is against the decision of the Subordinate Judge.

The only question is: Does sec. 153 of the Bengal Tenancy Act cover the case of a suit for rent by a fractional sharer of the landlord's interest?

The broad contention raised by the learned vakil for the. Appellant is that a suit for rent by one of a number of landlords of his share for the rent is not a suit for rent within the Bengal Tenancy Act. He has mainly relied on the Full Bench decision of this Court in Beni Madhub Roy v. Joad Ali Sarkar(1) and some of the observations of the learned Judges in Kedar Nath Chatterjee v. Ardha Chandra Roy Chowdhury(2). In the latter case Banerjee, J., is reported to have said—“It is true that a suit by a co-sharer landlord for his share of the rent payable by a tenant is a suit between landlord and tenant; but to say that such a suit is one under the Bengal Tenancy Act would be to ignore the general scheme of the Act as indicated by sec. 188, which says that anything which is required or authorised to be done by the landlord under the Act must be done by all the joint landlords acting together or by their authorized agent. Secs. 143 and 144 of the Act relied upon by the Appellant no doubt speaks of suits between landlord and tenant generally, but they do not show that a suit by a co-sharer landlord for his share of the rent is, in the face of sec. 188, a suit under the Act. Such a suit is maintainable, not as a suit under the Bengal Tenancy Act, but as a suit independent of the Act and outside its scope as was in effect held in Prem Chand Naskar v. Mokshada Debi(3) and Jugobundhu Pattack v. Jodu Ghosh Alkushi(4). I may here add that the preamble of the Bengal Tenancy Act which may be referred to as indicating its general scope shews that the Act is intended to amend and consolidate, not the entire, law of landlord and tenant, but only certain enactments relating to that law.” The learned Judge then refers to secs. 105 and 108 of the first Rent Act (X of 1859) and secs. 59 to 64 of Act VIII (B.C) of 1869 and expresses his opinion that notwithstanding that these Acts contained provisions for enforcement of decrees obtained by co-sharer landlord for their separate shares of rent, the Bengal Tenancy Act contains provisions only in respect of rent decrees obtained by a sole landlord or by the landlords acting in concert.

In Beni Madhub Roy v. Joad Ali Sarkar which arose out of a claim preferred on an attachment in execution of a decree by a co-sharer landlord, it was held by a Full Bench of this Court that, having regard to the provisions of sec. 188, sec. 170 of the Bengal Tenancy Act could apply only in a case of an execution of a decree by either the sole landlord or joint landlords acting in concert. The broad question now raised was not raised in that case.

In some of the other cases to which my attention has been drawn, the precise question raised before me was also not before the Court. They all referred to proceedings in execution of decrees and the application of the provisions of Chap. XIV of the Bengal Tenancy Act to proceedings for the realization of rent by execution by landlords. Beni Madhub Roy v. Joad Ali Sarkar, Hem Chunder Bhunjo v. Mon Mohini Dassi(5), Sheikh Naimuddin v. Srimanta Ghose(6) arose out of proceedings in execution of such decrees. In none of these cases it was directly necessary for the Court to decide the question whether a suit by a co-sharer landlord is a suit contemplated by the Bengal Tenancy Act. I am not, therefore, fettered by any case directly bearing on the point.

In some of the earlier cases in this Court a question arose as to the applicability of the bar to an appeal laid down in sec. 153 of the Act in suits in which the matter in controversy relates to the share of a co-sharer landlord and the amount of rent annually payable to him by the tenant in respect of his share. There was a difference of opinion amongst the Judges and the matter came up before a Full Bench in Narain Mahton v. Manofi Pattuck(7). The earned Judges were unanimously of opinion that the words “amount of rent annually payable by tenant” occurring in sec. 153 of the Bengal Tenancy Act include.