Dipa Mahton vs Sheo Nandan Prasad and Others

Dawson Miller, C.J.—The dispute in this case is between the auction-purchaser at a sale in execution of a decree for arrears of rent and the mortgagee or rather the transferee of the mortgagee of the holding. The question which arose was whether the purchaser had acquired the whole interest in the holding by his purchase at the auction sale or whether he had merely acquired the right, title and interest of the judgment debtor. In the former case he would be entitled to annul the incumbrance of the mortgage. In the latter case he would not. The appellant is the auction-purchaser. The rent of the holding was payable partly by a cash rent and partly by bhowali rent. After the decree the portion of the holding upon which the cash rent alone was payable was put up for sale and purchased by the appellant.

The learned Subordinate Judge on appeal from the Munsif found that there were in fact two holdings, in one of which the rent payable was nagdi and in the other bhowali, and that the decree was a decree for consolidated arrears of rent in respect of those two holdings.

The learned Judge of this Court on appeal agreed with the decision of the lower Appellate court and came to the conlusion that the question was really one of fact and dismissed the appeal.

It is not disputed that if there were in fact two holdings then the suit for a consolidated rent of the two holdings and a subsequent sale in execution of a decree would not confer upon the purchaser any greater title than the right, bible and interest of the Judgment-debtor. In my opinion the learned Judge was perfectly right in coming to the conclusion that the question was one of fact and he was not therefore, entitled to disturb the findings arrived at by the lower Appellate Court, but, in any event, it seems be me that the plaintiff is in this case upon the horns of a dilemma, because either there were two separate holdings in respect be which a suit was brought for their consolidated rent or if the holding was one only, then only a portion of it was subsequently sold in execution and it was that portion only which the purchaser acquired. There is nothing in Section 158 B of the Bengal Tenancy Act or indeed in any other section so far as it has been drawn to our attention which would give the purchaser the right to acquire the rights therein mentioned except by a purchase of the whole holding. So that if he purchased a portion only of the holding he did not acquire the rights therein mentioned but merely the right, title and interest of the judgment debtor so that from any point of view it seems to me that this appeal must be dismissed with costs.

Mullick, J.

I agree.