Meajan Mandal v. Jogendra Nath De

Teunon and Newbould, JJ.:— This appeal arises out of a suit for the recovery of arrears of rent Defendant No. 1 is the appellant. His substantial defences in the Courts below were, first, that he had been dispossessed from a part of his holding, namely, plot No. 3 in the kabuliat which evidences the creation of the tenancy; secondly, that he had never been put into possession of another plot, namely, plot No. 7; and, thirdly, that the suit was defective by reason of non-joinder of some of the tenants as defendants in the suit.

As regards plot No. 3, the finding of fact is that there has been no dispossession of the tenant defendants from that portion of plot No. 3 leased out to them.

With regard to plot No. 7, the finding similarly is that no part of plot No. 7 was ever included in the holding.

The contention of the tenant appellant that has been seriously pressed before us is one with regard to defect of parties. It appears that the original tenant of the holding in question was one Himat. He died leaving as his heirs four sons and two daughters. The present suit for rent has been brought against two of the sons of Hemat and the heirs of a third son who died subsequently to the death of Hemat. As all the defendants of Hemat have not been placed on the record as tenants, it is said that this suit should be dismissed. In support of this contention we have been referred to the case of Kasi Kinkar Sen v. Satyendra Nath Bhadra and also to the cases of Krishna Das Roy v. Kalitara Choudhurani , Siba Krishna Sinha Sarma v. Jagat Chandra Talukdar and the case of Shaik Sahad v. Krishna Mohan Basak . But we are of opinion that these cases may be distinguished from the present case and we think that on the facts of the present case we should follow the decisions in the cases of Lalit Mohan Sinha Roy v. Haran Chand Khamrui , Subashi Dasi v. Raj Krishna Roy and also in the case of Chamatkari Dasi v. Triguna Nath Sardar . We do so all the more readily because there is in this case the finding of fact arrived at by the Court of first instance and accepted by the Subordinate Judge in the Court of first appeal that the four defendants in the present case are the tenants in actual possession of the land and also because in the year 1909 a decree for rent was obtained against these defendants Nos. 1 and 2 and the father of defendants Nos. 3 and 4. It should further be observed here that the rent for which the present suit is brought accrued due not in the time of Hemat but in the time of the present defendants.

For these reasons, we dismiss this appeal with costs.

P.M.C

Appeal dismissed.