Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MANIK PRAMANIK VS Respondent: ISMAIL PAL
P L D 1960 Dacca 945
P L D 1960 Dacca 945
Before Amin Ahmed C. J. and Chakraborti, J
MANIK PRAMANIK AND ANOTHER‑Appellants
versus
ISMAIL PAL AND OTHERS---‑Respondents
Letters Patent Appeal No. 2 of 1958, decided on 10th February 1959.
Bengal Tenancy Act (VIII of 1885), S. 188‑Korfa tenant transferring land without consent of landlords‑Transferee mere trespassers‑ Co‑sharer landlords can file ejectment suit by making other co‑sharer landlords pro forma defendants.
Where a korfa tenant transfers the holding to a third person without the consent of the landlord, his action amounts to abandon ing the holding without making arrangement for payment of rent. The transferee has no right as against the landlords because there was no consent for the transfer. In such a case the landlords have the right of re‑entry as against the transferees who are mere trespassers and some of the co‑sharer landlords can bring a suit for ejectment if the remaining co‑sharer landlords are impleaded as pro forma defendants.
Golam Mostafa Chowdhury and others v. Jabiruddin Sarker and others P L D 1959 Dacca 169 and Jasada Kumar Roy Chowdhury and others v. Abdul Rahman and another 38 C W N 841 ref.
JUDGMENT
CHAKRABORTI, J.‑The short point involved in this Letters Patent Appeal is whether the suit for ejectment at the instance of the plaintiffs is maintainable.
2. The facts are : The disputed land was an occupancy raiyti held by the plaintiffs and pro forma defendants Nos. 3 and 4. Under these plaintiffs and pro forma defendant Nos. 3 and 4, one Barada Sundari Dasi held the land as a korfa tenant and Barada Sundari later on transferred the same to defendants Nos. 1 and 2, and there is a concurrent finding of the Courts below, which is not challenged, that the purchasers obtained 'no consent of the landlords for the transfer made in their, favour by Barada Sundari.
3. Now, the question is whether in these circumstances the suit would be hit by section 188 of the Bengal Tenancy Act (which we shall hereinafter call the Act only).
4. Mr. Acharyya has appeared for defendants Nos. 1 and 2 appellants, and has contended before This Court that unless the entire body of the landlords were joined as plaintiffs and co- plaintiffs, the suit for ejectment could not be maintained as against the purchasers, defendants Nos. 1 and 2. In support of his con tention, he has referred to the case of Golam Mostafa Chowdhury and others v. Jabiruddin Sarker and others (P L D 1959 Dacca 169), in which one of us was a party and in which the question was one under section 48‑C of the Act. Mr. Acharyya contends that section 48‑C has been specifically mentioned in clause (iii) of the proviso to section 188 of the Act, and that, as section 48‑F is not specifically mentioned therein, the exception provided by section 188 of the Act could not give any protection to the plaintiffs.
5. Mr. Das, assisted by Mr. Banik, has again contended before this Court that defendants Nos. 1 and 2 were simply tres passers and the plaintiffs would under the general law have a right of ejectment as against them. He has referred to the case of Jasada Kumar Roy Chowdhury and others v. Abdul Rahman and another (38 C W N 841), in support of his contention, where Nasim Ali, J., took the view that in a case where the lease of an under‑raiyat had expired, the lessee in that case became a trespasser and a suit to eject him was maintainable under the general law.
6. Mr. Yakub Hossain appearing for the Deputy Registrar has also contended before us that section 188 of the Act requires that there must be relationship of landlord and tenant and, as the suit has been brought by the plaintiffs as owners, and not as landlords, section 188 does not stand in their way.
7. Mr. Acharyya contended before this Court that, as the entire body of the landlords did not join in the ejectment suit, section 188 of the Act would stand as a bar to the plaintiff's suit ; at the same time he wanted to distinguish Jasada Kumar Roy Chowdhury's case on the ground that that was an action under the general law and not under the Act, implying thereby that this case fell under the provisions of the Act. Subsection (1) of section 188 of the Act lays down:
. . . . . . anything which the landlord is under this Act required or authorised to do must be done either by both or all those persons acting together or by an agent authorised to act on behalf of both or all of them:
Provided that one or more co‑sharer landlords if all the other co‑sharer landlords are made parties defendant to the suit or proceeding In manner provided in subsections (1) and (2) of section 148‑A and are given the opportunity of joining in the suit or proceeding as co‑plaintiffs or co‑applicants, may . . . . .
The subsection thereafter enumerates certain exigencies as contained in clauses (ii) to (x). Subsection (2) of section 188 of the Act provides:
"Any decree passed or order made in a suit or proceeding in which the conditions set forth in subsection (1) of this section have been complied with, shall have the effect of a decree passed or order made, on the application of the sole landlord or the whole body of landlords, and shall take effect as regards the whole tenure or holding, as the case may be."
Here there is no doubt that the conditions set forth in sub section (I) of section 188 of the Act have been complied with because some of the landlords have joined as plaintiffs and some of them have been joined as pro forma defendants. Their Lordships in Golam Mostafa's case summed up the law in the following words:
"In our opinion, two enactments, namely, section 188 (1) (iii) and section 48‑C of the Bengal Tenancy Act, are quite consistent and one may easily be reconciled with the other. The two sections read together mean only this that although a co‑sharer landlord can file an ejectment suit alone by making his other co‑sharer landlords co‑plaintiffs or co‑defendants, such a suit must be preceded by an ejectment notice given by all the co‑sharer landlords."
8. Practically, this is what has been laid down in sub‑section (2) of section 188 of the Act. Here the facts are that Barada Sundari who was the original korfa tenant had abandoned the holding without making any arrangement for payment of rent. The defendants had no right as against the landlords because there was no consent for the transfer. So, when Barada Sundari abandoned the holding without making any arrangement for payment of rent, the landlords had the right of re‑entry as against the defendants who were mere trespassers and who on the findings of fact arrived at by the Courts below were transferees without having any consent from the landlords. This is also the principle laid down in Jasada Kumar Roy Chowdhury's case. If this were not the law, the result would be quite anomalous because there might be hundreds of co‑sharers and supposing the transferees without the consent of the landlord somehow gain over one small frac tional co‑sharer, they could continue on the land and flout the entire body of the landlords. This could not be the object of the Legislature in framing the provisions of section 188 of the Act.
9. In the circumstances stated above, we are of opinion that the suit as framed was clearly maintainable, and, in the result, the appeal is dismissed with costs.
AMIN AHMED, C. J.‑‑I agree.
K. B. A. Appeal dismissed.