P L D 1952 Dacca 450 (PLP)

Sabita Ranjan Pal for Nirmal Chandra Nandi for Respondent No.

1. ISPAHANI, J.--‑ S. A. No. 1192 of 1943 arises out of a suit filed by the plaintiff appellant for khas possession of the disputed land on declaration of his title. His case is that Benoy Kumar Adhikari and others held a lama bearing an annua rental of Rs. 121‑8 under the darpatni tenure of Kumud Behar Nandi and Amulya Charan Roy, Satish Chandra Adhikari and Taranath Adhikari had one‑anna share in the said jama. Kushtia Deseya Bhandar, Limited, auction‑purchased the interest of Satish and Taranath on the 17th August 1939 and the 7th October 1939, in execution of rent decree obtained against them, and took delivery of possession throw Court. The plaintiff purchased the aforesaid one‑anna shay from Deseya Bhandar on the 15th March 1941. Defendant No. 2 auction‑purchased the lama of Rs. 121‑8 in the name of defendant No. 1 and obtained symbolical possession on the 4th May 1941, and since then forbade the tenants not to pay rent to the plaintiff; and thereby dispossessed him. The Plaintiff further alleged that by the rent sale the defendant did not acquire his interest in the property. The defendants contended that the decree was a rent decree and was obtained against the recorded tenants, that the defendant auction‑purchased the jama in execution of the rent decree and that the plaintiff did not acquire any interest by his purchases. The learned Munsif dismissed the suit holding that Sisir, one of the defendants in the rent suit, had been properly represented, that the decree was a valid rent decree and that the plaintiff had no title to the suit land. On appeal the learned Subordinate Judge, by his judgment and decree, dated the 15th December 1942, affirmed the decision of the learned Munsif and dismissed the appeal with costs. The plaintiff, therefore, has come in the second appeal to this Court. S. A. No. 1886 of 1944 arises out of a suit filed by the plaintiff respondent for recovery of khas possession of the suit land after declaration of her title thereto. The suit land is a sepatni appertaining to a darpatni under Kumud Behari Nandi and others. The superior landlords Kumud Behari Nandi and others had the darpatni right sold in execution of a decree for arrears of rent and the plaintiff auction‑purchased the darpatni on the 9th March 1940, and took delivery of possession through Court. One Abhilashi Debi, predecessor of the defendants, brought a case to set aside the sale as sepatnidar. It was alleged by the plaintiff that she came to know of the sepatni right of Abhilashi at that time. The plaintiff alleged that the sepatni right of Abhilashi was mala fide and the patta was a colourable transaction. The plaintiff, however, served a notice under section 167 of the Bengal Tenancy Act for annulment of the alleged sepatni and the plaintiff alleged that the defendants had no right to possess the disputed property. The defendants inter alia, contended that the sepatni right in the suit land was a valid one and that the auction‑purchase of the darpatni in which the sepatni is included was not a rent sale because the entire tenure was not represented so far as the tenancy was concerned. The learned Munsif, 1st Court, Kushtia, accepted the defence version of the case and dismissed the suit by his judgment and decree, dated the 10th March 1944. The learned Additional Subordinate Judge, Nadia, by his judgment and decree, dated the 11th September 1944, allowed the appeal and decreed the suit with costs and declared the plaintiff's title to the disputed land and also ordered the plaintiff to get khas possession of the suit land after evicting the defendant from unlawful possession. He dismissed the cross appeal preferred before him. Defendant No. 1 has, therefore, come in second appeal before this Court. These appeals are heard together as common question of law and some common facts are involved. On behalf of the appellants in both the appeals the first point urged is that the sale held in rent execution of the decree obtained by the landlords and started on the 11th September 1939, was in fact not a rent sale but a money sale inasmuch as the predecessor‑in interest of the plaintiffs in S. A. No. 1193 of 1942, who had auction‑purchase the interests of two original tenants in two money executions was not made a party before the sale in execution of the decree though the decree -holder landlord was bound to make him party. In other words, according to the appellants under Chapter XIV of the Bengal Tenancy Act it is incumbent that the purchaser of an interest of a tenant before the execution proceedings termi nate should be made a party to the execution proceedings in order that the rent sale has the effect of a sale under that chapter. On the other hand, the learned Advocate for the respondents has sought to invoke the aid of subsection 3 of section 146‑A of the said Act and has argued that it was not necessary for the landlord decree‑holder to make the purchaser a party to the execution and it was enough for the landlord to proceed against the tenants in the tenure whose names were entered in the rent roll. The facts in both the appeals are not in dispute. Deseya Bhandar of Kushtia in execution of money decree purchased the one‑anna share of Satish Chandra or Satish Adhtkary and Tarariath on the 17th August 1939 and 7th October 1939, respectively. The sales were confirmed on the 22nd Septem ber 1939, and the 28th November 1939, respectively. On the 15th March 1941, Deseya Bhandar sold the share purchased to the plaintiff in S. A. No. 1192 of 1943. On the 30th May 1939, a rent decree was obtained by the landlords against the tenants and on the 11th September 1939, rent execution was started by the landlords. From these dates it will be seen that the sale in the rent execution took place after the confirma tion of sales on the 22nd September 1939, and the 28th November 1939, in execution of money decrees obtained by Deseya Bhandar. The point for determination is whether at the time of sale in execution of the decree obtained by the landlords for arrears of rent relationship of landlord and tenant existed between the parties. This relationship is an essential feature in order that a rent sale may have the effect of a sale under Chapter XIV of the Bengal Tenancy Act. No doubt rent) execution was started prior to the confirmation of sales money executions started by Deseya Bhandar, but the sale in execu tion of the decree obtained by the landlords took place after, that is, on the 9th March 1940. The argument advanced on behalf of the appellants, in my opinion, must be accepted. In Arthur Henry Forbes v. Maharal Bahadur.Singh 18 C W N 747, their Lordships of the Privy Council observed that the right to bring a tenure or holding to sale under section 65 of the Bengal Tenancy Act exists so long at the relationship of land lord and tenant exists. This view was followed by the Special Bench in Kfishnapada Chatterjee v. Manada Sunda?i Ghose 36 C W N 518, and in Sreemati Binapani Debi v. Banku Behari Mondal 47 C W N 651 ; and in T(rishingha Prasad Bose v. Nil Ratan Singha Roy 54 C W N

683. In the present cases there would be no relationship of landlord and tenant between the parties at the date of sale held on the 9th March 1940, inasmuch as Deseya Bhandar had purchased a one‑anna share of the tenants Satish Adhikary and Taranath and was not made a party to the execution proceedings, provided the landlord had notice of the transfer. 1n S. A. No. 1192 of 1943, the lower appellate Court, though inclined to‑give relief to the appellant in that appeal. did not do so holding that there was no evidence when the landlord received notice of the transfer in favour of Deseya Bhandar. The learned Subordinate Judge held that no evidence was adduced by the appellant to show that notices of the transfer were received by the landlord before the sale was held. He, therefore, held that Deseya Bhandar could not claim to be a party in the midst of an execution sale. Mr. Pakrashi, appearing for the appellant in question, prayed for leave to put in additional evidence to prove that the notice of transfer was served on the landlord on the 3rd February 1940. In the interest of justice, that evidence has been accepted and it is now clear that the sale in execution of the rent decree was held after the notice was served on the land lord on the 3rd February 1940. In S. A. No. 1886 of 1944 there is a clear finding by both the Courts that notice of transfer was served on the landlord on the date mentioned above, Therefore, the notice of transfer having been served on the landlord before the sale in execution of the rent decree, it was A incumbent on the landlord to make Deseya Bhandar a party to the execution proceedings and failure to do so has rendered the sale in execution of that decree money sale and not a rent, sale and the interests of Satish Adbikary and Taranath purchased by Deseya Bhandar in execution of the money decree obtained by it are not affected by the sale held in execution of the rent decree obtained by the land lords. In this connection reference may be made to Menajuddin v. Heruxuddin Mullick 51 C W N 914, where it was held that where a tenure is sold pending the execution of a decree for arrears of rent in respect thereof, the purchaser must be made a party to the execution proceed ings in order that the rent sale may have the effect of 'sale under Chapter XIV of the Bengal Tenancy Act. It was further held that the principles laid down in the Privy Council case reported in 18 C W N 747 (supra) is that the relationship of landlord and tenant must subsist up to the date of sale and that principle is equally applicable whether the landlords's interest of the tenant's interest ceases before the sale. The next and last point urged on behalf of the appellants is that in the absence of an appointment of a guardian ad‑litem for Sisir, one of the defendants in the rent suit, who was a person of unsound mind, under the imperative provisions of Order 32, Rule 15, of the Code of Civil Procedure, the Courts below should have held that the said tenant was not properly represented in the said suit for rent and the decree in that suit operated only as a money decree, and, therefore, the sale held thereunder passed only the right, title and interest of the judgment‑debtors instead of passing the entire tenure in question. In both the appeals the findings are concurrent and against the appellants. Order 32, Rule 15, provides that the provisions contained in Rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the Court on enquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued. In the written statement of the suit out of which S. A. No. 1886 of 1944 arises, the point was taken that no enquiry was held to ascertain if Sisir was in fart a person of unsound mind. In the other suit out of which S. A. No. 1192 of 1943 arises, no such defence was taken. The parties in both the suits proceeded on the basis that Sisir was a person of unsound mind repre sented by his brother and in the lower Courts it was only urged that he was not properly represented. Mr. Sabita Ranjan Pal has, therefore, urged that at this stage that question cannot be agitated. As it, however, is a point of law it must be found out whether there is any substance in the argument advanced on behalf of the appellants. In this connection some authorities were cited, but it is sufficient to refer to only some of them. In Nirendra Lal Bhattacharyya v. Bepin Chandra Bhattacharyya 38 C W ‑N 1081. it was held inter alia that it must be first found, on enquiry, properly held, that by reason of unsoundness of mind or mental infirmity, such person is incapable of protecting his interests as plaintiff. In that case also both the parties were unanimous that the plaintiff was of unsound mind, and in spite of that, their Lordships held that an enquiry must be held to ascertain by reason of unsoundness of mind or mental infirmity, such person is incapable of protecting his interest. Mr. Pal, however, relied on Chapalamadugu Govindayya v. Suddapalli Rama murthi A 1 R 1941 Mad. 524, where it was held that before a next friend can represent a person incapable of protecting his rights, it is not necessary that there should be a preli minary enquiry by the Court that the person by reason of unsoundness of mind or mental infirmity is incapable of protecting his interest. In that case also an enquiry is contemplated and in the present case it has not been shown that such an enquiry was held before the brother of Sisir was appointed to represent his interests. Thus on this ground it must be held that the decree in the rent suit operated only as a money decree and, therefore, the sale held there under passed only the right title and interest of the judgment -debtors instead of passing the entire tenure in question. The result, therefore, is that for the reasons stated above S. A. No. 1192 of 1943 is allowed and the judgments and decrees of both the lower Courts are set aside and the plaintiff's title to the properties in question are declared and he does recover khas possession of the said properties. The appellant will get his costs throughout. S. A. No. 1886 of 1944 is also allowed and the judgment and decree of the lower Appellate Court, dated the 11th September) 1944, are set aside and that of the Munsif, dated the 10th March 1944, restored. The appellant will get his costs of this Court and of the lower Appellate Court. A. H. Appeals allowed.