P L D 1952 Dacca 288 (PLP)

Altafali | D.3 | | ____________________________________________________________________| | | | | | Latifa Khatun Sakar Banu Safar Joynab Somarta Plaintiff D.11 Banu Banu Banu D.12 D.13 | Badiazzam(d) | As the shares claimed by the parties are not disputed before us, we need not set out in detail here how the different parties claim their shares which have been specifically mentioned in the plaint. It will suffice to say that the plaintiff claims 1 anna 3 gondas 3 karas and 10/17th danti share and each of the defen dants Nos. 11 to 14 (her sisters) claim 15 gondas 1 kara 2 karants 16/17th danti share and defendants Nos. 14 to 21 claim 3 annas 10 gondas 14 jabs by purchase from Amir Banu, widow of Taizuddin. In the record‑of‑rights the disputed land has been recorded in the names of defendants Nos. 1, 2 and 3 only, which is incorrect. The plaintiff claims that is in posses sion of the homestead along with her brothers and nephews. Three sets of written statements have been filed in the suit. In one written statement by defendants Nos. 11 to 13, each of them claimed her inherited share of 16 gandas 1 kara 2 karants 16/17th danti and asked for a separate allotment; but they did not dispute plaintiffs claimed share and prayer for par tition. Similarly, defendants Nos. 14 to 21 in their written state ment claimed a separate allotment in respect of their purchas ed share in 3 annas 10 gondas 14 labs ; but did not dispute plaintiff's claim for partition of her share in the disputed property. The main defence is by the defendants Nos. 7 to 10 and of them, defendants Nos. 7 and 8 are respectively the wives of the defendant No. 9 and Abjal Mia, the latter is the father of the defendant No. 10 Abdul Halim. Their defence for the purpose of this appeal is that the disputed land belong ed to defendants Nos. 1, 2 and 3, whose names appeared in the record‑of‑rights, and that widows of Nur Mia and Taizuddin made oral gifts of their inherited sharer to the defendants Nos. 1 to 3, who were in exclusive possession; that in 1934 the landlord of the raiyati in 8 annas share, instituted a suit for arrears of rent of the holding and got a decree and in execution thereof the holding was sold and purchased by one Fazil Mia in auction on the 28th March, 1935; that the auction‑purchaser sold the said purchased interest to defendants Nos. 7 and 8 by a Kabala, dated the 6th March 1941 ; and that defendants Nos. 9 and 10 purchased some portion of the remaining 8 annas share from defendants Nos. 4 and 5, two brothers, by a Kabala, dated the 27th February, 1941, and it was alleged that the said defendants Nos. 4 and 5 had purchased that interest by three Kabalas in the years 1927, 1928 and 1929. It was further alleged that the defendant No. 22 Kadambini, purchas ed the remainder of the latter 8 annas share from Fazil Mia on the 11th January 1939, and, therefore, the defendants Nos, 7 to 10 and 22 claimed 16 annas interest in the suit land. It was further alleged by those defendants that the sale by Amir Banu was fictitious and that the plaintiff not having been in posses sion of the suit properties, the present suit was not maintain able. The further contention of the defendants was that the plaintiff was not a daughter of Taizuddin; but she was so set up by the defendants Nos. 1 to 3 and 14 to 17 and that, in fact, Taizuddin died leaving behind a widow, three daughters and three sons (defendants Nos. 1 and 2 and Nur Mia, father of the defendant No. 3). The learned Additional Subordinate Judge, Noakhali negatived the defence and held that the plaintiff, a daughter of Taizuddin, was entitled to get a separate allotment on partition in respect of her claimed share in 1 anna 3 gondas 3 karas and 10/17th danti in the disputed property. The learned judge further held that the sale in 1935 was not a rent sale and it did not affect the plaintiff's share at all. On appeal by the defendants Nos. 7 to 10 and 22 the learn ed District Judge of Noakhali affirmed that decision and direc ted that the plaintiff: should get a separate allotment in respect of her 1 anna 3 gondas 3 karas 10/17th danti share; that the defendants Nos. 11 to 13 should get separate allotments in a share of 16 gondas 1 kara 2 krants 16/17th danti each ; and that the defendants Nos. 14 to 21 should get another separate allot ment in a share of 3 annas 10 gondas and 14 jabs. Hence, this second appeal by the defendants Nos. 7 to

10. Mr. Obaidul Haq, appearing for the appellants, contends that the Courts below should have held that the plaintiff had no title to the disputed properties, as that‑ title had been extin guished by the rent sale on the 28th March 1935, and that sale was a rent sale because it was in execution of a decree for arrears of rent against the tenants recorded in the record‑of- rights. Mr. Huq argues that in view of the provisions in sub section (3) of section 146‑A of the Bengal Tenancy Act, it should be held that it was a rent sale. Mr. Huq referring to the decisions of R. C. Mitter J. of the Calcutta High Court in the case of Ayesha Khatun v. Muhammad Hossain Molla (1936) 41 C W N 85; Maharaja Sashi Katna Acharjee Bahadur v. Lechoo Sheikh (1935) 61 C L J 548 ; and the modified view of the learned judge in the case of Ramnath Banerjee v. Girish Chandra Sinha (1940) 45 C W N .119 argues that the 4 clauses in subsection (3) of section 146‑A of the Bengal Tenancy Act should be read disjunctively and if the provisions in any of the 4 clauses are attracted in a case, as here in this case, the decree must be treated as rent decree and the sale as rent sale. In other words, Mr. Huq argues that if any of the 4 clauses is attracted, it must be held in this case that defendants Nos. 1 to 3 represented the entire body of the landlords. The argu ment of Mr. Huq, therefore, boils down to this, that the word "and" between clauses (iii) and (iv) should be taken as "or" and the 4 sub‑clauses should be taken disjunctively and not conjunctively. At the very outset it may be stated that in interpreting the Statutes the Courts are not given any latitude to alter the word in the Statute ; but the Courts must give the ordinary dictionary meaning to the word used in the Statute. Bearing this in. mind, we are of opinion that the 4 sub‑clauses in subsection (3) must be intended by the Legislature to be taken conjunctively and not disjunctively. In our view, the Legislature did not intend that compliance with any of the clauses in that subsection would suffice to represent the tenure or holding. If the Legislature had so intended, the word intervening between clauses (iii) and (iv) should have been "or" instead of "and". In spite of the aforesaid decisions of Mr. Justice R. C. Mitter of the Calcutta High Court and the arguments advanced by Mr. Obaidul Huq, we are unable to hold that the 4 sub‑clauses should be taken in this context disjunctively but should be taken conjunctively. In our opinion, therefore, the 4 subclauses should be read together and if in any case all the pro visions mentioned therein are fulfilled, then and then only it can be said that there was proper representation in the rent suit in order to get a decree under Chapter XIV of the Bengal Tenancy Act. The view which we have taken in the matter follows from the language used by the Legislature in the Statute and is in accordance with the decision in the case of Amulya Charan Misra v. Prankrishna Adhicary and others (1938) 42 C W N

755. Apart from this, the question of representation is a question of fact. In the present case the finding of fact, which is binding on us in second appeal, is that in the rent suit, in execution of the decree whereof the holding was sold, the holding was not represented by the defendants Nos. 1 to

3. That finding is a finding of fact, there fore, we are bound to hold on that finding that the defendants No. 1 to 3 did not represent the holding in dispute in respect of all the co‑sharers. So, that alone concludes the matter. We, therefore, hold that there is no substance in the only con tention of the learned Advocate for the appellants and this appeal must be dismissed with costs. Before we part with this case, we may observe that the judicial decisions on the doctrines of representation in rent suits are not uniform. It appears to us that this conflict of judicial decisions is due to some confusion of thoughts as to the true effect and scope of the provisions in section 146‑A of the Bengal Tenancy Act ; as if the entire law of representa tion in rent suits is embodied in that statutory provision and that representation cannot be established unless it is shown that the landlord has joined in his rent suit all the persons enumerated in the four clauses of subsection (3) of that section. To us it does not appear from the reading of the section itself that it is the correct position. It is conceivable that the landlord cannot plead ignorance of the existence of the different categories of co‑sharer tenants mentioned in four clauses of subsection (3) and it is also normally expected of a landlord that he should implead all such persons in a suit for arrears of rent, who to his knowledge or information may have an interest in the tenancy. It is also true that the landlord cannot plead any excuse for leaving out of his rent suit any co‑sharer tenant who may be residing in the village in which the holding or tenancy is situate (clause (i)), or from whom he may have actually received rent at any time during the three previous years (clause (ii)); or who may have served on him any notice of the acquisition of an interest in the holding or tenancy by inheritance or purchase or otherwise (clause (iii)); or whose names appear in his rent‑roll. It appears to us from the language and words used in the subsection (3) that if the defendants in the suit include all such persons, then it shall be deemed that the tenancy or holding has been represented by them and this is all that is enacted in the subsection. Therefore, it is one thing to say that if all these persons are joined as defendants, that alone without more will be sufficient to establish representation ; but it is quite a different proposition to state that the non‑joinder of any such persons or of any other persons having an interest in the holding or tenancy, will by itself negative presentation. We, therefore, see no reason why, apart from the provisions of this subsection, it may not be possible and not open to a party interested to show that in point of facts the entire tenancy or holding has been represented by the persons who have been actually joined as defendants. That brings us to a question of fact, and, therefore, the question to be decided in a case like this in relation to the particular facts in each case. The question of representation is taken from the general law. In this particular case, we have already held that the last Court of fact has found the holding was not properly represented. Therefore, considering the matter in all its aspects we cannot accede to the contentions advanced before us by the learned Advocate for the appellants and contention is rejected. AKBAR, J.‑

I agree. A. H. Appeal dismissed.