Godai Mahato and Others vs Debu and Others

Mohammad Noor, J.—The facts leading up to the present appeal are these: The plaintiff, the principal defendants and some others were cosharer landlords of village Kuluhar which they were holding in common tenancy. Later on there was a partition and a preliminary decree for partition followed by a final decree was passed. Under the terms of the decree the plaintiff among other things got the exclusive right of the realization of rent from the pro forma defendants who are tenants of the village.

The present suit is based upon the fact that the principal defendants have wrongfully realized rents from the pro forma defendants in spite of the partition decree. The plaintiff seeks a declaration that he is exclusively entitled to the rents payable by the principal defendants and asks for a decree for a refund against the principal defendants for the rents wrongfully realized by Mm. The defence of the principal defendants who are the appellants in this Court is that in spite of the partition decree they had all along been realizing rent from the pro-forma defendants and the plaintiff not having taken execution of the partition decree cannot maintain the suit. Both the Courts have decreed the plaintiff''s suit and the principal defendants have preferred this second appeal.

The main contention in this appeal has been that the suit is barred u/s 47, Civil P.C. It is urged that it is a suit for enforcement of the partition decree which is barred by Section 47 of the Code. Both the Courts have overruled this contention and in my opinion they have done so rightly. The partition decree which is on the record does not purport to divide the land among the various cosharers though practically the effect of the decree may be a division of the land among them. The decree simply entitled the plaintiff to realize the rent from pro forma defendants exclusively. It would have been certainly much better if the plaintiff had taken out a formal execution of the decree, but in my opinion his not having done so does not in the least affect the present suit. I fail to understand how the present suit is barred u/s 47, Civil P.C.

The present suit does not relate to execution, satisfaction or discharge of the partition decree. The partition decree gives the plaintiff as against all his cosharers an exclusive right to realize rent from certain tenants. That decree irrespective of execution is binding upon all the cosharers. The tenants are also bound by it provided that they had notice of the exclusive right of the plaintiff. The delivery of possession prescribed in Order 21, Rule 36, is not so much for the information of the judgment-debtor as for the information of the tenants occupying the land, so that after the delivery of possession the tenants should attorn the decree-holder who is their landlord and pay rent to him. Non-execution of decree does not take away the plaintiff''s exclusive right to get rent from the pro-forma defendants.

In this particular case the plaintiff has sought remedy not against the tenants but against the co-sharer landlords who were bound by the decree and the plaintiff''s grievance is that in spite of the decree the defendants have wrongfully realized rent from those tenants from whom the plaintiff was exclusively entitled to realize rent.

Reliance has been placed upon the case of Hemchandra Mahto and Others Vs. Prem Mahto, , a case in which this very partition decree with which we are concerned in the present suit was in controversy. In that suit Hem Chandra Mahto wanted recovery of possession of certain land which was in khas possession of another cosharer Prem Mahto. This Court held that the suit was barred u/s 47, Civil P.C. Now, that decision is not applicable to the present case. There the land which was in khas possession of one cosharer was allotted by the partition decree to another cosharer. The co-sharer who was in possession from before did not give up possession and that cosharer to whom the land was allotted wanted recovery of possession by suit. It was held that he could not do so.

The present suit is not for recovery of possession of any land allotted to the plaintiff. It is for recovery of money which has been wrongly taken by the defendants who under the terms of the decree were bound not to take it. Apart from this it has been found by both the Courts below that even before the partition decree the defendants were not exclusively realizing rent from the pro forma defendants, but the plaintiff was also realizing rent from them.

Therefore the plaintiff was never out of possession of the rent payable by the pro forma defendants. The only effect of the decree was that instead of getting rent jointly with the defendants, he became entitled to realize the entire rent. In my opinion the view of law taken by the Courts below is correct.

The second contention of the learned advocate is that the plaintiff is not entitled to get a refund of more money than the partition decree entitled him to realize from pro forma defendants. It appears that the rent payable by the pro forma defendants has increased by the settlement operation of the district. This argument is rather curious and it does not seem to have been taken before the lower appellate Court. The contention is to be stated and rejected. When a particular set of tenants have been assigned to a particular cosharer all that these tenants are liable to pay must be paid to that landlord. It cannot be said that any enhancement of rent will be for the benefit of other cosharers and not for the exclusive benefit of the landlord in whose share the tenants have fallen.

The third point raised is the question of limitation. It is contended that the plaintiff''s suit being for a declaration of title is barred by limitation having been brought more than six years after the partition decree. This point also does not seem to have been raised before the lower appellate Court. The cause of action in the suit is the invasion of the plaintiff''s right and the realization of rent in contravention of the decree gives the plaintiff a cause of action and the suit is within three years of that invasion.

I do not think any question of limitation arises in this case.

The appeal is dismissed with costs.