Shamsuddin Biswas v. Molannessa Bibi

B.B Ghose, J.:— This appeal by the Defendant No. 2 and some other defendants arises out of a suit for recovery of khas possession of certain lands. The facts are these. One Drajtulla had a tenure carrying a rent of Rs. 43-3 which was sold to one Raj Kumar and Sarala Sundari. After the sale he took a sub-ordinate interest under the purchasers in the name of his wife Defendant No. 8. In the year 1916, the plaintiff purchased the tenure at an auction-sale in execution of a decree for rent against Raj Kumar and Sarala Sundari. In 1917 certain creditors of the plaintiff's husband Defendant No. 9 sold the tenure in execution of a money-decree against Defendant No. 9 and purchased it themselves. The plaintiff's husband Defendant No. 9 had, on a certain date which is not material, purchased the interest in the land obtained by Drajtulla under the lease from Rajkumar and Sarala Sundari taken in the name of his wife Defendant No. 8. Defendant No. 2 purchased the interest of Defendant No. 9 in that subordinate lease hold in execution of a decree on the 20th March 1917. The plaintiff brought the suit out of which this appeal arises for recovery of khas possession of the lands on the ground that it was a non-transferable occupancy holding which the Defendant No. 2 had purchased and he had no right to remain on the land, and secondly, that assuming the interest purchased by Defendant No. 2, was an encumbrance she had served notice under Section 167 of the Bengal Tenancy Act as an auction-purchaser of the superior interest and so entitled to recover possession.

2. The main defence was that the plaintiff had no interest in the tenure as she was merely a benamidar for her husband and the husband's interest having been sold byhis creditors she had no right to maintain the suit; and secondly it was urged that interest purchased by the Defendant No. 2 was a mokarrari lease which was transferable and further that no notice had been served under Section 167 of the Bengal Tenancy Act on him.

3. It is unnecessary to relate the various fortunes of the case in its preliminary stages. After it was remanded on a previous occasion by the lower appellate Court it went back to the Munsif, who dismissed the suit. There was an appeal by the plaintiff and on appeal the learned Additional District Judge has held that the plaintiff was not the benamidar of her husband Defendant No. 9 but had purchased the tenure in her own right and the execution sale against the husband held by the creditors did not affect her interest at all, and that the plaintiff therefore had the right to the property and was entitled to maintain the suit. With regard to the right of transferability the learned Judge observed that there was, as far as he could see, no dispute as to the jama being a non-transferable occupancy holding and he also held that there was evidence to prove due service of notice under Section 167 of the Bengal Tenancy Act.

4. On appeal before us it is not disputed that the finding as regards the plaintiff's, right being a subsisting right cannot be attacked in second appeal. But it is contended that the Judge was wrong in holding that there was no dispute as to the jama being a non-transferable occupancy holding. It is contended that the whole question in dispute was whether the defendant had a transferable mokarrari interest or not. It seems to me that this is not a question which can be urged on second appeal. It may probably have happened that having regard to the state of the evidence the pleader who appeared for the defendant could not dispute the question of fact that the tenancy was a non-transferable occupancy holding, and this appears to have been the fact from the discussion of the reason why the learned Judge held that it was a non-transferable occupancy holding. If it was a fact that the question was really contested before the learned Judge the pleader who had conducted the case before him might have brought it to his notice that it was matter of dispute which he had to decide after the deli very of judgment or might have applied for a review on that ground. We can not sitting in second appeal interfere with the judgment on the ground urged before us. That being the position it is unnecessary to go into the question whether notice under Section 167 of the Bengal Tenancy Act was served or not as it was not necessary to annul the interest of Defendant No. 2 which was not an encumbrance as defined in the Act.

5. It was, however, urged that there was no evidence to prove service of notice under Section 167 of the Bengal Tenancy Act. This ground was not taken in the grounds of appeal printed in the paper-book and the learned Vakil for the respondents who was served with a notice of additional grounds in which this ground was taken states before us that there is evidence a of due service of notice. We cannot in second appeal go into the question of fact whether the evidence is sufficient or not and we must, therefore, accept the finding of the learned Judge in the question and if this is so the alternative case which is argued on behalf of the defendant that their interest was a mokarrari one would not afford a good ground for resisting the claim of the plaintiff as the plaintiff would be entitled to recover possession after service of notice under Section 167 of the Bengal Tenancy Act even if the interest of Defendant No. 2 had been a mokarrari interest and a transferable one.

6. This disposes of the appeal. But an application was made to us to accept the finally published Record of Bights under Chap. X of the Bengal Tenancy Act which was made in 1924, that is, after the decision of the appeal in the lower appellate Court and during the pendency of the second appeal to this Court. It is alleged that in the record of rights the interest of Defendant No. 2 has been described as a mokarrari interest and the appellant asks that this evidence should be accepted in this Court and the case sent back for retrial in view of the record of Bights. It seems to me very difficult to bring this application within the provision of R. 27, O. 41 of the CPC, because in the first instance it does not come within Cl. (a) of sub-R. 1, nor does it come within the Cl. (b). As we sitting here cannot be said to require any document to be produced or any witness to be examined to enable us to pronounce judgment on a question of fact or for any other substantial cause to enable us to pronounce judgment on a question of fact, if we are to accept this document we should have to reverse the finding of fact arrived at by the Court of appeal below and to send back the case for re-trial after taking into consideration the evidence which we allow to be produced in this Court. But we can set aside a judgment in second appeal only on the ground set forth in Section 100 of the CPC. The findings of fact which had been arrived at by the lower appellate Court are not tainted by any of the defeats mentioned in S. 100 in which case only we can interfere in second appeal. It seems to me that we are, therefore not in a position to accept fresh evidence in second appeal with regard to a question of fact under the circumstances mentioned by the appellant. The appeal must, therefore, stand dismissed with costs.

Cuming, J.:— I agree.

7. Appeal dismissed.