Surendra Nath Ghose vs Haripada Maity and Others

P.N. Mookerjee, J.—These two appeals are by the Defendants in two Money suits. The suits were sequels to certain pre-emption proceedings. The relevant facts (which are not in dispute before us) lie within a short compass and they are as follows:

There was an occupancy raiyati holding of which the Plaintiff-Respondent was one of the co-sharer tenants. One of the Plaintiff''s co-sharers transferred his interest in the said holding to Nil Madhab Ghose, the Defendant in Money Suit No. 42 of 1946, on April 26, 1944. The Defendant in the other Money Suit No. 43 of 1946, Surendra Nath Grhose, had earlier obtained a transfer of the interest of another of the Plaintiff''s co-sharers in the same occupancy holding on April 6, 1944. On January 4, 1945, the Plaintiff applied for pre-emption and he made two applications in respect of the above two transfers. These applications were allowed by the trial court on August 25, 1945 and October 3, 1945. There were appeals taken against the trial court''s decisions and the appeal in one case was finally disposed of an February 22, 1946 and, in the other, on March 26, 1946, after the Plaintiff had made certain further deposits to the credit of the transferees. On June 25, 1946, the present suits Money Suit No. 42 of 1948 and Money Suit No. 43 of 1946) were instituted by the Plaintiff-Respondent for recovery inter alia of what may be conveniently called rent for use and occupation (vide, Sections 26F(8) and 156(d) of the Bengal Tenancy Act) for the year 1352 B.S. The suits were decreed in part by the learned Munsif who allowed the Plaintiff a decree for Rs. 197 in each case as rent for use and occupation of the land in 1352 B.S. by the Defendant concerned. On appeal, that decision has been affirmed by the learned Additional District Judge and the Defendants'' appeals have been dismissed. The Defendants have now come up in Second Appeal to this Court.

The short question that arises for consideration is as to for what period the Plaintiff would be entitled to rent for use and occupation from the Defendants. The relevant statutory provisions are Section 26F, Sub-sections (7) and (8) and Section 156(d) of the Bengal Tenancy Act. u/s 26F(7), the right, title and interest in the transferred portion or share of the holding, accruing to the transferee from the transfer, vests in the pre-emptor from the date of the making of the pre-emption order. Under Sub-section (8), the transferee, when he is divested of his right, title and interest under the provisions of Sub-section (7), is to be deemed, for purposes of Clause (a), (c) and (d) of Section 156, to be a raiyat, ejected from his holding by proceedings for his ejectment commencing on the date on which the application for pre-emption was made. The Defendants-Appellants contend that, under Sub-section (8) read in the light of Sub-section (7) of Section 26F and Section 156(d) of the Bengal Tenancy Act, they are liable to pay rent for use and occupation to the Plaintiff-Respondent only for the period commencing from the date of the making of the pre-emption order and ending with the delivery of possession. According to the Plaintiff-Respondent, this liability of the Defendants would start from the date of making of the pre-emption applications and continue till delivery of possession and thus cover the entire Bengali year 1352 (for which the Plaintiff''s claims were made) and a part of 1353 B.S. top. The courts below have accepted the Respondent''s view.

We are unable to agree with the learned Judges of the two-courts below that the relevant period would be from the date of the making of the pre-emption applications.

Under Sub-section (7), the pre-emptor gets his title from the date-of the making of the pre-emption order and Clause (b) of the Sub-section keeps up the liability of the transferee (pre-emptee) for the landlord''s rent up to the date of the said order, which obviously means that the transferee (pre-emptee) is legally entitled to possession and the usufruct up till that date.

Under Sub-section (8), the transferee is deemed to be a rdiyat? ejected from his holding by proceedings for his ejectment, commencing on the date of the making of the pre-emption, application.

In the light of the statutory provisions, referred to above, it seems to us that the liability of the transferee (pre-emptee) for "rent" for use and occupation will be, at the most, for the period commencing from the date of the making of the pre-emption order until the date of delivery of possession.

If the Respondent''s view, which has been accepted by the courts below, be correct, for the period between the date of the'' making of the pre-emption application and the date of the pre-emption order, the transferee (pre-emptee) will have a double liability for "rent", namely, the "rent" strictly so called, payable to the landlord and the "rent", payable to the pre-emptor u/s 156(d) of the Act for the use and occupation of the land. We do not think that this was the intention of the statute. It is manifestly absurd and also inconsistent with the view we have taken of Sub-section (7).

In our opinion, ejectment proceedings, referred to in Section 156 of the Act, include the ejectment suit as well, so that, u/s 26F (vide Sub-sections (7) and (8)), read with Section 156, the date of the making of the pre-emption application corresponds to the date of the ejectment suit and the date of the making of the pre-emption order corresponds to the date of the ejectment decree and would thus be the date of election, referred to in Section 156(d), at the earliest.

We may note here that the Defendants-Appellants before us: did not contend that they would not be liable for rent u/s 156(d) for any period whatsoever nor did the plaiintift-Respondent urge any case u/s 156(c).

We hold, therefore, that the Appellants'' liability u/s 156(d) of the Bengal Tenancy Act would be, at the most, for the period between the dates of the pre-emption orders and delivery of possession.

Admittedly, possession was taken by the Respondent in pursuance of the pre-emption orders on June 26, 1945, corresponding to Asar, 1353 B.S. The final orders for pre-emption (which must, in the facts of these two cases, be the appellate orders) will be of the dates February 22, 1946 and March 23, 1946. As the Plaintiff-Respondent''s claim was only for the year 1352 B.S. and there was no claim made for any period of 1353 B.S., he will be entitled to "rent" from the Defendants in the two cases from February 22, 1946 and March 23, 1946, up to the end of the Bengali year 1352 B.S. The decrees of the two courts below will have to be modified accordingly.

The appeals are, accordingly, allowed in part. The judgment and decrees of the two courts below are modified by limiting the liability of the Defendant in Money Suit No. 42 of 1946 to the period commencing from the date February 22, 1946, till the end of the Bengali year 1352 B.S., that is April 13, 1946, which roughly means a period of one month and three quarters and, in the other suit, namely, Money Suit, No. 43 of 1946, to the period from March 26, 1946, to the same date, April 13, 1946, that is, roughly for a period of 18 days. Calculated'' at the rate of Es. 197 per annum which has been found and accepted by both the courts below and which was not disputed before us, the respective figures would come to Rs. 25 and Rs. 8 in the two Second Appeals Nos. 742 and 741 of 1948 arising respectively from Money Suits Nos. 42 and 43 of 1946.

The appeals are allowed to the above extent and the decrees of the two courts below are modified accordingly.

There will be no order for costs in any of these appeals.

Guha, J.

I agree.