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Petitioner: SADEMANI SARDAR VS Respondent: MOHAMMADALI MOLLAH
P L D 1960 Dacca 640
P L D 1960 Dacca 640
Before Khan, J
SADEMANI SARDAR‑Appellant
versus
MOHAMMADALI MOLLAH AND OTHERS --Respondents
Second Appeal No, 204 of 1958, decided on 15th December 1959.
(a) Civil Procedure Code (V of 1908), O. XXII, r. 4 (4) When appeal abates in toto‑Test.
The proper test for determining whether an appeal has abated as a whole or not is to see whether in the event of the appeal succeeding there will be contrary decrees or not. If there is a likelihood of such conflicting decrees being passed, then the appeal abates as a whole.
Iman Ali Halsana and others v. Furkan Ali Mondal and others P L D 1960 Dacca 3 and Amjad Sheikh and others v. Siddik Hossain Sikdar and others (1956) 8 D L R 217 rel.
(b) Bengal Tenancy Act (VIII of 1885), S. 86 (l) (7) Surrender by one co‑sharer tenant of his share of occupancy holding‑Whether valid‑Surrender of part of holding‑When valid.
In the four corners of the Bengal Tenancy Act, 1885 no where has it been provided that one of the co‑sharer tenants out of several joint co‑sharer tenants can surrender his share of the occupancy holding independently of his other co‑sharer tenants. In order to constitute a valid surrender of a part of holding under the Bengal Tenancy Act, 1885, the provisions of subsection (7) of section 86 of the Act must be complied with and there must be an arrangement between all the tenants and all the landlords to that effect.
Usharani Debi v. Osman Gani Mea and others (1957) 9 D L R 20; Osman Gani Mea v. Usharani Debi (1954) 6 D L R 648 and Gayesuddin Talukdar and others v. Mohammad Gaji and others P L D 1959 Dacca 289 rel.
S. C. Datta for Appellant.
M. H. Khandker with Mahbubar Rahman for Respondents.
JUDGMENT
In this Second Appeal, defendant No. 1 is the appellant. This appeal arises out of a suit for confirmation of plaintiffs' possession or, in the alternative, for recovery of possession of C. S. Plot No. 1217 measuring 2‑13 acres of land in Mouza Fatehpur on declaration of plaintiffs' title thereto. There was also a prayer for permanent injunction restraining the defendants from reaping away the crops from the suit land.
2. Plaintiffs' case, as set out in the plaint, may briefly be stated as follows : The suit land was held in occupancy raiyati right by principal defendant No. 1, Sudemani, and his brother, pro forma defendant No. 31 Erfan, at a jama of Rs. 4‑8‑0 under the landlords Paul Chowdhury and others. The said landlords auction‑purchased the holding on 23‑11‑46 in Rent Execution Case No. 1867/46 and took delivery of possession of the same through Court on 8‑3‑4. The landlords thereafter settled the suit land to pro forma defendant No. 31 at an annual jama of Rs. 5 under a registered kabuliyat, dated the 12th Chaitra, 1353 B. S., corresponding to 26‑3‑47. Pro forma defendant No. 31 thereafter settled the suit land with plaintiff No 1 in jamai right under a registered patta dated the 9th Baishakh 1360 B.S., corresponding to 20‑2‑53 and plaintiff No. 1 again granted a sub‑lease in respect of '95 acre of land by the southern portion of the suit land in favour of plaintiffs Nos. 2 to 4 by, a registered patta, dated the 12th Jaistha 1360 B. S., corresponding to 26‑6‑53 and the said plaintiffs Nos. 2 to 4 were also holding the remaining portion of the suit land of plaintiff No. 1 as his bargadars. Thus all the plaintiffs have been in possession of the entire suit land on the strength of their respective title. Defendant No. 1 having failed to take new settlement from the landlords, he in collusion with the other principal defendants forcibly cut away half‑ripe aus paddy grown by the plaintiffs in the suit land and has been threatening to dispossess the plaintiffs from the suit land.
3. Defendant No.1 and defendants Nos. 2 to 28 filed two separate written statements. Defendant No. 1 denies plaintiffs' alleged title and possession in the suit land and contends inter alia that the suit land appertains to a jama of Rs. 21‑5 2 which was held by Kailash Paul Chowdhury and others under the Hatbaria Zemindars, namely Ashutosh Roy and others. These superior landlords, namely Hatbaria Zemindars, put the holding of Kailash Paul and others, referred to above, to sale for arrears of rent and they themselves auction‑purchased it, and took delivery of possession. Thereafter the Hatbaria Zemindars demanded rent from this defendant and his brother, pro forma defendant No. 31, asking them to mutate their names in their sherista. Pro forma defendant No. 31 did never pay any rent and, the lands being jungly, both defendant No. 1 and pro forma defendant No. 31 surrendered the holding in favour of the Hatbaria Zetriindars in 1945 and, in the said year, defendant No. 1 took settlement of the suit land from the Hatbaria Zemindars at an annual jama of Rs. 4‑8‑0 and since then he has been in possession, of the suit land on payment of rent to the Hatbaria Zemindars and their successor Biva Roy who acquired their interests (Hatbaria Zemindars' interests) by auction‑purchase in a rent sale. Thereafter Government acquired the interest of Biva Roy and this defendant has also been paying rent to the Collector and he obtained dakhilas on payment of rent. The defendant has further set up the plea of special law of limitation under Article 3 of Schedule III of the Bengal Tenancy Act and also adverse possession.
4. Defendants Nos. 2 to 28 have also denied plaintiffs' alleged title and possession in the suit land and supported defen dants' alleged title and possession.
On these pleadings, the following issues were framed by the learned Munsif:
(1) Have the plaintiffs any cause of action? (2) Is the suit barred by limitation‑general and special ? (3) Is the story of possession of the plaintiffs true ? (4) Are the plaintiffs entitled to get a decree for declaration of title and confirmation of possession ? (5) What relief, if any, are the plaintiffs entitled to ?
5. The learned Munsif upon a consideration of the evidence in the case dismissed the suit holding that the interest of Kailash Paul Chowdhury and others having been auction‑purchased by their superior landlords, namely, the Hatbaria Zemindars, in execution of a rent decree and that defendant No. 1 and pro forma defendant No. 31 having surrendered the holding in favour of Hatbaria Zemindars after they had auction‑purchased the interest of Paul Chowdhury and others, Paul Chowdhury and others acquired no interest in the suit land by virtue of their auction purchase in execution of the decree for rent which had only the effect of a money decree and that the Hatbaria Zemindars having kept Paul Chowdhury and others out of possession through defendant No. 1 for more than two years and defendant No. 1 having‑ taken a new settlement of the suit land from the Hatbaria Zemindars, the plaintiffs or their predecessor, namely, pro forma defendant No. 31, acquired no interest in the suit land. In short, the learned Munsif has found that the plaintiffs have got no title and possession in the suit land and that the suit is barred by the special law of limitation.
6. Against the judgment and decree passed by the learned Munsif, plaintiff No. 1 alone filed an appeal. The learned Subordinate Judge, who heard the appeal, reversed the judgment and decree passed by the learned Munsif and allowed the appeal and decreed the suit holding that even though there was surrender of the holding in suit in favour of the Hatbaria Zemindars, defendants' landlords, namely, Paul Chowdhury and others, were entitled to proceed against the new tenancy of defendant No. 1 under section 168‑A (1) (a) of the Bengal Tenancy Act and defendant No. 1 having raised no objection under section 47 of the Code of Civil Procedure, the plea raised by him is barred by section 47 of the Civil Procedure Code and that the plaintiffs' predecessor Erfan acquired good title from Kailash Paul Chow dhury and others by virtue of the new settlement and consequently the plaintiffs have got title and possession in the suit land and that the suit is not barred by the special law of limitation under Article 3 of Schedule III of the Bengal Tenancy Act or by adverse possession. The learned Subordinate Judge, therefore, decreed the suit and passed the following order:
"This appeal should ultimately succeed And is accordingly allowed on contest with costs throughout and We judgment and decree of the learned Munsif are set aside, and the suit decreed with the result that the alleged right, title and interest of the plaintiffs be declared in regard to the ` suit land in respect of which they do get khas possession after evicting the principal defendants therefrom."
7. Against the aforesaid appellate judgment and decree, defendant No. 1 has preferred this Second Appeal.
8. Mr. Khondkar, the learned Advocate appearing on behalf of the plaintiffs‑respondents, has raised a preliminary objection as to the competency of the appeal on account of the abatement, of the appeal due to the death of respondent No. 29. It is contended that the appeal has abated in toto.
9. Mr. S. C. Datta, the learned Advocate appearing on behalf of the appellant, has argued that the appeal did not abate in toto because the appeal is by defendant No. 1, who only claims interest in the suit land and that the deceased respondent against whom the appeal has abated claimed no interest in the suit land; that the plaintiff claimed on relief against respondent No. 29 and, as such, he is an unnecessary party in the suit as also in the appeal. On the merits of the appeal, Mr. Datta has urged that the learned trial Court has committed an error in law in holding that Paul Chowdhury and others acquired interest in the new tenancy of Sademani by virtue of their auction‑purchase under the provisions of section 168‑A (1) (a) of the Bengal Tenancy Act, whereas he ought to have held that the original tenancy held under Paul Chowdhury and others having been surrendered in favour of the Hatbaria Zemindars who had already auction‑purchased the interest of the Paul Chowdhury and others and Paul Chowdhury and others having purchased the original holding in execution of their decree for rent which had the effect of a money decree, they could acquire no interest in the same and, as such, plaintiffs' lessor pro forma defendant No. 31 acquired no interest from Paul Chowdhury and others by virtue of his alleged new settlement.
10. Now as regards the preliminary objection raised by Mr. Khandkar that the appeal having abated against respondent No. 29, it has abated in toto, I may observe that this objection must be upheld. It would appear that deceased respondent No. 29 was principal defendant No. 27 in the suit itself, out of which this appeal has arisen and he was principal respondent defendant No. 26 in the appeal before the lower Appellate Court. It appears that respondent No. 29 died during the pendency of the appeal and his heirs having not been substituted within the prescribed time an order was recorded by this Court on 16‑3‑59 that the appeal abated as against the said respondent.
11. Mr. Datta has contended that this respondent No. 29 was not a necessary party in the suit or in the appeal inasmuch as he claimed no interest in the suit land and that no relief was sought against him by the plaintiffs and, as such, the appeal does not abate in toto. This contention of Mr. Datta has got no substance at all. The plaintiffs filed the suit for declaration of their title and for confirmation of possession of, in the alternative, for recovery of possession after evicting the defendants from the suit land and for permanent injunction restraining the defendants from interfering with their possession. It has been alleged by the plaintiffs that the defendants including respondent No. 29 forcibly cut away paddy from a portion of the disputed land and threatened to dispossess the plaintiffs. This respondent No. 29 appeared along with other defendants and filed a written statement and denied plaintiffs' right, title and possession, although he did not claim any interest in the suit land. The prayer portion of the plaint clearly shows that the plaintiffs sought relief against all the principal defendants including respondent No. 29, who was principal defendant No. 27 in the suit. So it is 'not true to say that no relief was sought against respondent No. 29. The lower Appellate Court passed the decree in favour of the plaintiffs against all the principal defendants declaring plaintiffs' title to the suit land and allowing them khas possession after evicting all the principal defendants therefrom.
12. In the case of Iman Ali Halsana and others v. Furkan Ali Mondal and others (P L D 1960 Dacca 3), Akbar, J. delivering the judgment of a Division Bench of this Court, observed at page 7 of the report as follows:
"One of the tests as to whether an appeal as a whole has abated is as to whether if the appeal succeeds there will be in existence two conflicting decrees. If such be the position, then the appeal as a whole abated and not partially."
The same principle has been laid down by Rahman, J., in the case of Amjad Sheikh and others v. Siddik Hossain Sikdar and others ((1956) 8 D L R 217). Rahman, J. observed at page 219 of the report as follows:
"The proper test, in my view, for determining whether an appeal has abated as a whole or not is to see whether in the event of the appeal succeeding there will be contrary decrees or not. If there is a likelihood of such conflicting decrees being passed, then it may well be urged that the appeal abated as a whole."
Now let us apply the test to the facts of the present case. If defendant No. 1 appellant succeeds in this appeal, the appellate decree against respondent No. 29 will remain in existence and will be binding against the heirs of respondent No. 29. That being the position there will be two inconsistent decrees. I, therefore, hold that the appeal has abated in toto.
13. Now, on the merits of the appeal also, the contention of Mr. Datta has got no substance at all. Mr. Khandkar has urged that both the Courts below has committed an error in law in holding that there was a surrender of the holding within the meaning of section 86 of the Bengal Tenancy Act. It is an admitted fact that the suit land was originally a raiyati holding of the father of defendant No. 1 and pro forma defendant No. 31 and their father died leaving them as two sons and Fatehjan as a daughter. Both the Courts below held that defendant No. 1 and pro forma defendant No. 31 surrendered the holding. It is, therefore, clear that Fatehjan was not a party to this alleged surrender. So the holding was partially surrendered by principal defendant No. 1 and pro forma defendant No. 31.
14. In the case of Usharani Debi v. Osman Gani Mea and others ((1957) 9 D L R 20), Amin Ahmed, A. C. J., delivering the judgment of a Division Bench of this Court, observed at page 23 of the report as follows:‑---
"On the other hand, if subsection (1) and subsection (7) of section 86 are read together, one can have no doubt that sub section (1) of section 86 provides even for the surrender of the entire holding irrespective of any arrangement with or consent of the landlords, provided all the co‑sharer tenants join in the surrender, and subsection (7) of section 86 excepting a case under subsection (6) provides not only for the surrender of the whole but also for a, part of the holding provided again that all the co‑sharer tenants join in the surrender, and the landlord also agrees to it. But in the four corners of the Bengal Tenancy Act nowhere has it been provided that one of the co‑sharer tenants out of several joint co‑sharer tenants can surrender his share of the occupancy holding independently of his other co- sharer tenants."
15. In the case of Osman Gani Mea v. Usharani Debi ((1954) 6 D L R 648 : 5 P L R Dacca 136), it has been held that a part of a holding cannot be surrendered by some of the co‑sharer tenants. A similar view has been taken in the case of Gayesuddin Talukdar and others v. Mohammad Gaji and others (P L D 1960 Dacca 289). In that case it has been held that in order to constitute a valid surrender of a part of a holding under the Bengal Tenancy Act, the provisions of subsection (7) of section 86 of the Bengal Tenancy Act must be complied with and there must be an arrangement between all the tenants and all the land lords to that effect.
16. Now subsection (7) of section 86 of the Bengal Tenancy Act reads as follows:
"Save as provided in subsection (6), nothing in this section shall affect any arrangement by which a raiyat or under‑raiyat and his landlord may arrange for surrender of the whole or a part of the holding."
17. Now in this case there is nothing to show that Fatehjan was a consenting party to the alleged surrender by principal defendant No. 1 and pro forma defendant No. 31. That being the position, the alleged surrender was not a valid one. Conse quently, Paul Chowdhury, who admittedly purchased the holding in suit in execution of their rent decree against the principal defendant No. 1 and pro forma defendant No. 31, acquired interest in the said holding inasmuch as there was no valid surrender of the holding by the principal defendant No. 1 and pro forma defendant No. 31 either in their favour or in their superior landlords, namely, Hatbaria Zemindars.
18. Even if defendant No. 1 acquired a new tenancy under the Hatbaria Zemindars, in that case too the provisions of section 168‑A (l) of the Bengal Tenancy Act are applicable to this case. Pal Chowdhury and others were certainly entitled, when their interest was auction‑purchased by their superior land lords, to proceed against the new tenancy of Sademani in execution of their decree for arrears of rent against Sademani and his brother Erfan.
19. In the result, the appeal fails both on the ground of abatement as well as on merits.
20. The appeal is accordingly dismissed on contest with costs. The judgment and decree of the lower Appellate Court are hereby affirmed.
K. B. A. Appeal dismissed.