Baliram Prasad vs Harnandan Rai

Jwala Prasad, J.—This appeal arises out of a suit for ejectment in respect of certain lands bearing khata No. 97 and khesra Nos. 173, 175, 177, 186 and 193 in mauza Pipra. The lands measure 5 16 acres and were recorded in the survey Record-of-Rights as sharai-moiyan of defendants 1 and 2 and their predecessors (Ex. 2). They were given in rehan under two deeds, one Ex. 5 dated 1st July 1894, for Rs. 999 and the other Ex. 5 (a) dated 20th June 1908, for Rs. 1,500 in favour of the predecessor in interest of the plaintiffs. The plaintiffs Balaram Prasad and Raghunandan Prasad are the sons of Jagarnnath Prasad deceased and plaintiff 3 Mt. Radhika Kuer is the widow of Jagarnnath Prasad. They were the proprietors of mauza Pipra in which the land in suit lies.

Jagarnnath Prasad executed a mortgage bond in favour of Satnarain Panre of Berja and deposited with him the aforesaid rehan bonds of 1894 and 1908 along with other bonds by way of security for the mortgage-money. The plaintiffs instituted suit No. 113 of 1914 against Jagarnnath Prasad, father of plaintiffs 1 and 2 for partition of village Pipra and the other villages belonging to the family. While the suit was pending on 19th February 1915 Jagarnnath Prasad executed a sale-deed in favour of defendants 3 and 4 in respect of the 16 annas of mauza Pipra and other villages. We are concerned in this case with Pipra alone and therefore the other villages need not be mentioned by names. On 20th October 1915, the partition suit was disposed of declaring plaintiffs 1 and 2 entitled to eight annas of village Pipra and the aforesaid rehan deeds of 1894 and 1908 were also allotted to their share. In 1916 defendants 3 and 4 in spite of the declaration of the title of the plaintiffs to eight annas of Pipra in the aforesaid suit of 1915, got their names recorded in respect of the sixteen annas of the said mauza in the Collector''s Land Registration Department. The plaintiffs thereupon instituted the Title Suit No. 387 of 1916 against Jagarnnath Prasad and defendants 3 and 4 alleging the sale of the entire sixteen annas in favour of defendants 3 and 4 as being collusive for setting aside the sale. The sale was set aside by the judgment of the Subordinate Judge on 22nd July 1918, and it was upheld by the High Court on 10th July 1922. On the strength of this decree the plaintiffs got their names registered in the Collector''s dakhil-khariregister in respect of eight annas of mauza Pipra on 7th August 1923.

In the meantime while this litigation was going on and the title of the plaintiffs was declared by the Subordinate Judge, defendants 3 and 4 obtained a rent decree against defendants 1 and 2 for sixteen annas of rent, who-had by virtue of a shikmi settlement by the plaintiffs and their father been in actual possession of the land after the execution of the rehan bonds of 1894 and 1908. Defendants 3 and 4 in execution of the rent decree put up the lands in suit to sale. The plaintiffs applied to be made parties to the rent suit and their application was refused. Then when the property was put up to sale they applied for the mortgages of 1894 and 1908 to be-notified and they were notified. On 5th July 1921, defendants 3 and 4 purchased the lands in dispute in execution of their rent decree. The plaintiffs applied to have the sale set aside under Order 21, Rule 90, but their application was rejected on 5th September 1921. On 3rd May 1922, defendants 3 and 4 got dakhal-dehani in respect of the entire property. On 30th August 1922, defendants 3 and 4 applied1 to the Collector to annul the two encumbrances, namely, the aforesaid rehans of 1894 and 1908 u/s 167, Ben. Ten. Act. Their application was opposed on behalf of the plaintiff but their objection was overruled by the Collector by his order dated 23rd September 1922, and by the order of the Collector the aforesaid mortgages in favour of the plaintiffs were annulled. Aggrieved by this order the plaintiffs have instituted the suit.

The only point that arises in this appeal for consideration is whether defendants 3 and 4 had purchased the lands in dispute with the aforesaid encumbrances or usufructuary mortgages of 1894 and 1908 and whether they were entitled to have them annulled u/s 167, Ben. Ten. Act. The Munsif held that the decree obtained by defendants 3 and 4 was a mere money decree inasmuch as they were not the sole landlords or the entire body of landlords. According to the Munsif the plaintiffs were entitled to eight annas share of the rent in the disputed lands and they were landlords to that extent within the meaning or scope of the aforesaid section of the Bengal Tenancy Act. The learned Munsif accordingly decreed the plaintiff''s suit.

On appeal the Additional District Judge by his decision on 24th February 1926, took a contrary view and held that defendants 3 and 4 had obtained a rent decree and the entire holding by the sale in execution of that decree passed to them free from all encumbrances and he therefore set aside the decree of the Munsif. On behalf of the appellants this view of the learned Subordinate Judge is disputed. Now at the time when the decree for arrears of rent was obtained on 10th April 1918 (Ex. B), the plaintiffs had already obtained a decree from the Subordinate Judge in Suit No. 387 of 1916 declaring their title to eight annas share in village Pipra and other villages. That decree was passed on 22nd July 1918. Therefore at the date of the rent decree defendants 3 and 4 were not the sole landlords of the holding in question.

Mr. Nirsu Narain Sinha on behalf of the respondents contends that inasmuch as the plaintiffs had not got their names registered in the dakhil-khariregister of the Collector under Act 7 of 1876 they were not entitled to obtain a rent decree by virtue of Section 78 of that Act. A short answer to this contention is that their inability to obtain a rent decree by reason of their names having not been entered in the Collector''s register does not affect their title to the lands in dispute as landlords thereof. This is laid down in para. 2 of Section 60 itself. It says that nothing in the section

shall affect any remedy which any such third person may have against the registered proprietor, manager or mortgagee.

Thus although he may not himself be able to obtain a rent decree, his right as proprietor, manager or mortgagee is not affected. In other words, he does not case to be a co-proprietor, manager or mortgagee. Only the rent Court or the revenue Court will not help him in the realization of his dues from the tenants until he has got his name registered under the Land Registration Act.

Again a landlord may not be a proprietor, manager or mortgagee. The word "proprietor" is a technical term and it is defined in the Bengal Tenancy Act in Section 3, Clause (2) as meaning a parson owning, whether in trust or for his own benefit, an estate or a part of an estate. Clause 8, Section 3, Land Registration Act, defines a proprietor to mean every person being in possession of an estate or revenue-free property, or of any interest in an estate or revenue-free property as owner thereof; and includes every farmer and lessee who holds an estate or revenue free property directly from or under the Collector. The provisions of the Land Registration Act, Section 38 upwards, require the proprietors, managers and mortgagees to record their interest in the land registration register. There is no provision in the Act for the registration of farmers and lessees who do not directly hold under the Government. Yet they are landlords within the meaning of the term of the Act. There is no provision in the Land Registration Act for the registration of these persons yet they may be landlords in respect of the lands held by tenants under them and as there is no provision in the Land Registration Act, for the registration of their interest nor is there any obligation on their part to have their interest registered, they would be entitled to institute a suit and obtain a decree in respect of the rent due from the tenants in spite of the fact that their names have not been registered in the Collector''s register.

Again a landlord may be a tenure holder who has a right to realise rent from his tenants. He will be entitled to institute a suit for rent and obtain a rent decree in spite of the fact that his name is not registered in the Collector''s register. The word "landlord" has been defined in Section 3, Clause 4, Ben. Ten. Act to mean a person immediately under whom a tenant holds and includes the Government. Thus landlords may be persons other than proprietors, managers and mortgagees who are required by the Land Registration Act to have their names registered in the Collector''s register. Section 60, Ben. Ten. Act, and Section 78, Land Registration Act relate exclusively to proprietors or mortgagees. They do not refer to landlords at all, for a landlord does not come within the scope of those sections. Sections 148 and 159 including the subsections refer to landlords and do not confine themselves to proprietors, managers or mortgagees. A cosharer landlord may be entitled to obtain a decree for rent in respect of his share but unless he complies with the provisions of Sections 148(a) and 159 (b) the decree obtained by him will not be a rent decree so as to entitle him to obtain by purchase in execution of that decree the holding itself free from all encumbrances. He will be entitled to realise his decree by the sale of the right, title and interest of the judgment-debtor. This view is supported by the decision in Nibaran Chandra Roy and Others Vs. Nabin Chandra Roy and Others, , where his Lordship observed:

I can see no objection on principle that a cosharer landlord may not, in the presence of the other cosharers who are incompetent to realise their rent, sue for his rent and recover it although there had been no separate collection before.

In that case the cosharers were incompetent to realise the rent on account of their names not having been registered under Sections 15 and 16, Ben. Ten. Act, by the Collector.

The plaintiffs in this case had a subsisting interest in the land in suit as landlords thereof along with their father Jagrnnath Prasad. The partition Suit No. 113 of 1914 and Title Suit No. 387 of 1916 did not create any new title but simply confirmed the title which they had in themselves and had been in possession thereof. The partition decree was based upon the assumption that they were in possession of eight annas interest in the property. Therefore they had not lost the interest by reason of the mala fide sale of the entire 16 annas by their father which subsequently was held to be invalid so far as their interest of eight annas was concerned. The fact that they did not get their names registered in the Lini Registration Department, and in fact they could not do so until the partition suit was decided, did not affect their subsisting title and they did not cease to be landlords. Defendants 3 and 4 were never 16 annas landlords and the decree obtained by them in respect of 16 annas rent was a mere money decree. They purchased only the right, title and interest of the tenants and judgment-debtors with the encumbrances thereon, namely the usufructuary mortgages of 1894 and 1908 which mortgages were duly notified in the proclamation of sale. The proceeding taken by them and the order passed by the Collector u/s 167 of the Act annulling those encumbrances was therefore without jurisdiction. The result is that the judgment of the lower appellate Court is set aside and that of the Munsif is restored. The appeal is decreed with costs.

Wort, J.

I entirely agree.