Amirul Islam Vs Sarada Kumar Sen and Others

R.C. Mitter, J.@mdashThe subject-matter of this appeal and the suit out of which it arises is a sum of Rs. 10-14-0, i.e., a sum below Rs. 50.

2. The defendants Nos. to 4 were admittedly tenants of the plaintiffs. Towards the end of the year 1337, the defendants Nos. 2 to 4 sold their share in the holding to defendant No. 8. After the transfer both defendants Nos. 1 and 8 were joint tenants of the holding. The defendant No. 8 by the document of transfer Ex. A undertook to pay the arrears of rent due in respect of the share of defendants Nos. 2 to 4, that is to say the defendant No. 8 only undertook to pay a part of the rent due to the share of defendants Nos. 2 to 4. The landlord instituted the present suit for rent of the years 1334 to 1337 B.S. The defence of defendants Nos. 2 to 4 was that they were not liable for the said arrears, but defendant No. 8 was, and in support of their defence they relied upon Section 73 of the Bengal Tenancy Act as amended in 1928. The trial Court held that defendants Nos. 2 to 4 were not liable for the arrears but defendant No. 8 was liable with defendant No. 1 for rent for the period in suit. The learned Munsif had final powers u/s 153 of the Bengal Tenancy Act. In my judgment the question raised and decided by the learned Munsif does not come within the proviso of Section 153, because there was no decision by him on a question relating to title to land or to some interest in land as between parties having conflicting claims thereto. It is admitted that the interest of defendants Nos. 2 to 4 passed to defendant No. 8 towards the end of the year 1337. Defendant No. 8 did not and could not claim to have the interest of a tenant prior to the date of his transfer. In this view of the matter the decision cited before me by the learned Advocate for the appellant, namely, the case of Bipin Chandra Majumdar Vs. Raj Kumar Sinha and Others, is distinguishable because in that case the question as to the liability to pay rent related to a period after the tenancy had been transferred.

3. The plaintiffs preferred an appeal against the judgment and decree of the learned Munsif. The learned Additional Subordinate Judge of Chittagong took a different view of the rights and liabilities of the parties and came to the conclusion that defendants Nos. 1 to 4 and 8 were liable to pay rent to the plaintiffs for the years in suit. On the question of liability the provisions of Section 73 will have to be considered hereafter, but it is necessary to dispose of a preliminary objection taken on behalf of the respondents as to the competency of this appeal.

4. The respondents urge that no question coming within the proviso to Section 153 having been decided by the lower Appellate Court, the appeal to this Court, is incompetent. In my opinion the question raised and decided in this case do not come within the proviso to that section. The question, therefore, is, if the appeal to the lower Appellate Court was incompetent, is the appeal to this Court is competent? The appellant has contended that when an appeal had been held to be incompetent in the lower Appellate Court, a second appeal was held to be competent in spite of the fact that the lower Appellate Court, had not decided any of the questions coming within the proviso to Section 153 and in support of this proposition the appellant has placed before me the decision of Wajudi Pramanik Vs. Mahomed Balai Morul, . That case certainly supports the contention of the appellant. This decision is binding on me in second appeal and I must follow it, although my own view is that under these circumstances an appeal to this Court would be incompetent. In giving judgment Mr. Justice Suhrawardy and Mr. Justice Chotzner relied on the cases of Kalipada Kaimakar v. Sekhar Bashini Dasya 24 C.L.J. 235 : 35 Ind. Cas. 348 : 20 C.W.N. 967 and Bandiram Mukerji v. Purna Chandra Boy 27 C.L.J. 115 : 43 Ind. Cas. 758 : 45 C. 926. The latter case did not turn upon 9. 153. In that case a general proposition was laid down that if the lower Appellate Court had no jurisdiction to entertain in an appeal, a second appeal against its decree would lie, and the point that lower Appellate Court had no jurisdiction would be one of the grounds, that would come within Section 100 of the Code. In the case of Kalipada Karmakar v. Sekhar Bashini Dasya 24 C.L.J. 235 : 35 Ind. Cas. 348 : 20 C.W.N. 967 the appeal before the Subordinate Judge was incompetent inasmuch as the Munsif did not decide any question coming within the proviso to Section 153, but the learned Subordinate Judge had in fact decided a question which came within the proviso, a question which had been raised before the Munsif but was left undecided. In that case it was pointed out that if the learned Subordinate Judge had not decided such a question, the appeal would have been incompetent. The case of Kaliapada Karmakir v. Sekhar Bashini Dasya 24 C.L.J. 235 : 35 Ind. Cas. 348 : 20 C.W.N. 967 relied upon by Mr. Justice Suhrawardy does not support the broad proposition laid down in the case of Wajudi Pramanik Vs. Mahomed Balai Morul, . But notwithstanding my views as to the corrections of this decision I am bound to follow it because it is a decision of a Division Bench of this Court. I accordingly hold that the appeal to this Court is competent.

5. The question, therefore, is whether the defendants Nos. 2 to 4 are liable for the period in suit. There cannot be any question that they are liable for the years 1334 and 1335, because Section 73 as amended came into force in February, 1929. The question, therefore, remains to be determined whether they are liable for the year 1336 and 1337.

6. Section 73 is in these terms:

Where an occupancy raiyat transfers his holding in whole or in part, the transferor and transferee shall be jointly and severally liable to the landlord for arrears of rent due before the transfer.

7. Then there is a proviso:

Provided that the transferor shall not be liable to the landlord for such arrears of rent, if the transferee has agreed to pay such arrears to the landlord and the fact has been mentioned in the instrument of transfer.

8. In my view the proviso deals with the case where the liability to pay the entire rent had been taken over by the transferee. The first paragraph of Section 73 makes the transferor and the transferee, whether the transferor be of the whole of the holding or of a part, jointly and severally liable for the whole of the arrears due to the landlord, when the proviso refers to such arrears it must obviously refer to the whole of the arrears due. In the present case there has been no transfer by one of the tenants and defendant No. 8 has not taken upon himself to pay the whole of the arrears due.

9. In these circumstances I do hold that the decree passed by the lower Appellate Court is correct and this appeal must be dismissed with costs.

10. No order is necessary on the application filed u/s 115 of the Code.