Doman Sahu and Another vs Gangu Nayek

Fazl Ali, J.—This appeal arises out of a suit brought by the plaintiff, appellants to recover bhaoli rent for the years 1343 and 1344 Fasli. As the claim for the year 1343 Fasli is not pressed, the only question to be determined in this appeal is whether the appellants are entitled to recover bhaoli rent from the defendant for the year 1344 Fasli. The appellants base their claim upon a sadhaua-pataua deed executed in their favour by one Mt. Sona Dei on 11th December 1933, in respect of her proprietary share in the estate in which the respondent''s holding is situated. Both the Courts below have held that this deed is a usufructuary mortgage and the appellant not having been registered in Register D are-not entitled to recover rent from the respondent. The appellants however have tendered in evidence in this Court a copy of Register D which has been marked as Ex. A without objection. This document shows that the appellants were recorded as usufructuary mortgagees after the institution of the present appeal and on the basis of it they now claim a decree for the rent of the year 1344 Fasli.

Now the points which arise in this appeal are precisely those which arose in Umeshwardhari Singh v. Neman Singh AIR (1928) Pat 410. In that case there being a difference of opinion between Kulwant Sahay and Macpherson JJ., the following questions were referred to Mullick J.: (1) Whether a mortgagee, whose suit for rent had been rightly dismissed in appeal by reason of the provisions of Section 78, Land Registration Act, 1876, could secure a decree for rent sued for from the Court of second appeal, if he has during the pendency of the second appeal been registered under that Act, and (2) if be could do so, whether the rent was barred by limitation if his name was registered in the Collector''s register after the expiry of the period of limitation for bringing a suit for rent and (3) whether having regard to the provisions of Section 100, the Court of second appeal could reverse the decree passed by the Courts below on the. ground that the plaintiff had after the institution of the appeal got himself registered. Mullick J. agreeing with Kulwant Sahay J. answered all these questions in favour of the plaintiff and it seems to me that in view of the decision in that case, there is hardly any room for argument in this appeal. It being suggested, however, that the decision of Mullick J. has not been followed in its entirety in two subsequent cases, I wish to examine briefly the arguments advanced by the respondent on this point. Dealing with the question of limitation, the first point to be considered is what is the effect of Section 78, Land Registration Act, 1876. That Section runs as follows:

No person shall be bound to pay rent to any person claiming such rent as proprietor, or manager of an estate or revenue free property in respect of which he is required by this Act to cause his name to be registered, or as mortgagee, unless the name of such claimant shall have been registered under this Act.

It is contended on behalf of the respondent that by reason of this Section, the liability of the tenant to pay rent does not arise until the landlord claiming to be entitled to the rent is registered as such and consequently the appellants had no cause of action when they brought the suit. The argument is a plausible one, but it appears that the view which has been consistently taken in a number of cases which cannot now be dissented from is that under this Section the right to the rent of an estate being in the proprietor, although not registered, his right to sue for the rent is not taken away; but this Section merely puts an impediment in the way of his realizing the rent until he had complied with the law by obtaining registration of his name as proprietor. This view was set out very clearly in the Full Bench decision of the Calcutta High Court in Alimuddin Khan v. Hira Lal Sen (1896) 23 Cal 87 and was accepted as the correct view by Kulwant Sahay J. and Mullick J. in 7 Pat 690.1

It is suggested on behalf of the respondents that a contrary view has been expressed in at least three subsequent cases of this Court. The first case is that in Sharafat Karim v. Harangi Singh AIR (1931) Pat 417, which was decided by Jwala Prasad and Wort JJ. It appears that both the learned Judges did not agree in that case with the view of Mullick J. (which they characterised as obiter dictum) that even where the plaintiff landlord has not got his name registered in Register D, a conditional decree can be passed in his favour imposing a condition that he will be able to execute it upon his name being registered. The learned Judges however have nowhere suggested in their judgment that the case was not correctly decided on its own facts, which it is conceded were quite similar to those of the present case. On the other hand, the distinction which they drew between that case and the case before them was that whereas in the first case the proprietor had been registered before the second appeal was heard, in the case before them no such registration had taken place.

It was pointed out to us that one of the observations made by Wort J. in his judgment was that where a proprietor was not registered under the Bengal Registration Act, such non-registration "would-be a bar to the plaintiff''s cause of action;" and, it was contended that this observation supports the view propounded on the respondent''s behalf that the plaintiffs had no cause of action until their names were registered. Now, the Actual observations made by Wort J. are these:

Consequently no action by a person not registered under the Act can succeed; in other words, it is a bar to the plaintiff''s cause of action.

If we bear in mind the first part of the observation, it is quite clear that what his Lordship really meant was that the plaintiffs could not sue successfully if their names were not registered under the Bengal Registration Act. The next case which was relied on by the respondent was that in Dildar Hussain v. Sheikh Saddiq AIR (1938) Pat 35. In that case also the name of the plaintiffs who sued as proprietors of a village for recovery of rent had not been recorded as such and Wort J. observed at the end of his judgment:

I should have mentioned that they were precluded from suing by reason of Section 78 of the Land Registration Act.

In my opinion if these remarks are construed in the light of the remarks made by Wort J. in the previous case, the expression "suing" must be interpreted in the above sentence also to mean "suing successfully," this view being consistent with the "view expressed in a number of cases of the Calcutta High Court which have never been dissented from by this Court. It must be observed that in none of the two cases referred to above, the question as to whether the plaintiff had a cause of action at the time of the suit properly arose, because the plaintiff not being registered even at the time when the second appeal was heard, his suit had to be dismissed in any event; and in the first case Jwala Prasad J. who was of the same opinion as Wort J. made the following remarks:

Neither Section 78, Land Registration Act, nor Section 60, Ben. Ten. Act, prohibits a suit being instituted for rent by a plaintiff without having his name registered under the Land Registration Act. These Sections prohibit recovery of rent unless the plaintiff has his name registered. Therefore although the plaintiff is entitled to bring a suit without his name having been registered, he is not entitled to recover rent unless he gets his name registered.

The last case cited on behalf of the respondent was that in Saiyid Ekram Hussain v. Saiyid Ali Huasain (1936) 17 PLT 423 in which James J. while dealing with the effect of Section 78, Bengal Registration Act, incidentally observed that under that Section no person whose name is not entered in the register can maintain a suit for recovery of rent. This Section was referred to by the learned Judge only to show that the entry in the Register D was evidence of the fact that the person whose name appears in the register is the person who is in possession of the property and in the case before him the question as to whether Section 78 bars a suit or merely bars the right to recover rent was not raised at all. Thus, the view expressed by this Court in 7 Pat 6901 still stands good and I am unable to hold that the appellant''s suit is barred by limitation. This suit was instituted on 22nd September 1937, within a year of the date when the plaintiffs'' right to rent accrued and the mere fact that the plaintiff was registered more than a year after the accrual of that right will not affect the position. Section 78 does not bar the right to sue if the rent was due; its only effect is that the liability for rent cannot be enforced.

The second point raised on behalf of the respondent is also concluded by the decision of this Court in Umeshwardhari Singh v. Neman Singh AIR (1928) Pat 410. In that case the question as to whether the Court of second appeal was entitled to take into consideration the effect of the registration of the plaintiff''s name during the pendency of the second appeal was expressly referred to Mullick J., and he substantially agreed with the view taken by Kulwant Sahay J. The point was not dealt with fully by Mullick J� but as was pointed out by Kulwant Sahay J. the provisions of Order 41, Rule 33, are wide enough to enable the Court to take into consideration the entry in the Land Registration Record made since the institution of the second appeal. It has been held in a number of cases that in special circumstances the Court of second appeal can take notice of facts material to the decision of a case which have arisen sub-sequent to the decision of the suit: see Hill v. Satan Singh AIR (1920) Pat 559 and Sawan Singh v. Haveli Shah Sardari Lal AIR (1935) Lah 32. It is true-that it is stated in Section 100, Civil P.C., that an appeal shall lie to the High Court from a decree passed in appeal by any Court subordinate to it on certain specified grounds only and Section 101 provides that no-second appeal shall lie except on grounds mentioned in Section 100. This Section however must be read with Order 41, Rule 33, which provides that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.

The only limitation which has been put upon the powers of the Court in this Section is that

the Appellate Court shall not make any order u/s 35-A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.

This provision applies not only to appeals from original decrees but also to appeals from appellate decrees, and so, in my opinion, this Court is quite competent to pass a decree in favour of the plaintiffs on the basis of the entry in Register D which shows that the bar imposed by Section 78 has now been removed. The only other point which was put forward before us on behalf of the appellant was that the document upon the basis of which the plaintiffs have instituted the suit is in essence not a usufructuary mortgage but a lease. In my opinion, it is unnecessary to discuss this question in view of the fact that the plaintiffs themselves have obtained an entry in Register D on the footing that they are the usufructuary mortgagees of the property.

I would therefore allow this appeal, set aside the decrees of the Courts below and direct that a decree be made in favour of the plaintiffs for the produce rent of the year 1344 Fasli in accordance with the decision of the Munsif as to the quantity of produce which is not challenged by either party. The produce of the holding is to be calculated at the rate of ten kachcha maunds of paddy per bigha and the price of the produce should be calculated on the basis of the rates published in the Gazette and if such rates are not available or are less than the rate admitted by the defendant, then at the rate of ten kachcha pasuris per rupee as admitted by the defendant in his written statement. The plaintiffs will not be entitled to any damage and the parties will bear their costs throughout.

Chatterji, J.

I agree.