Gananath Satpathy and Others vs Harihar Pandhi and Others

Mullick, J.—This appeal arises out of a suit which was instituted by the four plaintiffs against defendants Nos. 1 to 8, the landlords, defendant No. 9, Kusun Behara the recorded tenant of the holding in dispute, and against defendant No. 11, Jasoda, Dei the, daughter-in-law of the aforesaid Kusun Bebara. The dispute relates to a holding of about 41/3 acres, out of which in or about the year 1898 Kusun Behara mortgaged an area of 1 man to the plaintiffs. On the 27th January 1899 Kusun Behara conveyed with the consent of the landlords an area of 1 man out of the holding to the plaintiffs. On the 28th January 1899, Kusun Behara transferred the remainder of the holding to his daughter-in-law Jasoda Dei. In 1910 the plaintiffs sued Kusun Behara upon the mortgage of 1898 and obtained a sale certificate on the 31st August 1910 and delivery of possession on the 11th April 1911, The case of the plaintiffs is that they thereby became possessors not only of the 1 man which was transferred in 1899 and in respect of which their title was recognised by the joint landlords, but also of ''the additional area of 1 man which was conveyed to them by the mortgage of 1898. In 1911, however, the joint landlords sued Jasoda Dei the transferee for the rent of the holding as constituted after deduction of the 1 man in respect of which they had recognised the transfer to the plaintiffs. A decree was obtained but the plaintiffs having deposited the decretal amount the decree was not enforced by sale. The defendants again sued Jasoda in 1912 for the rent of the holding and a decree having been obtained, the 15th July 1913 was fixed for the sale of the holding. The plaintiffs, apprehending that their title to the area purchased in execution of their mortgage decree would be jeopardised, brought the present suit on the 6th June 1913 claiming the following declarations:

(1) That it may be decided that we the plaintiffs have got the right of purchase in auction in the land in claim and that it may be decided that the defendants '' Nos. 9 and 10 have no right or concern therein.

(2) That it may be proved that the suit, the decree, the execution of the decree in respect of the said land of the defendants Nos. 1 to 8, are illegal, invalid and inoperative.

(3) That our right of purchase in auction in the said land may be declared and our possession therein may be confirmed, or if it be decided that we ought to get possession, we may be given possession.

(4) That till the final decision of the suit the injunction may be given to the defendants Nos. 1 to 8 for staying the auction sale of the land in claim.

It will be convenient to notice here that Kusun Behera died during the pendency of the suit and his sons Hari Behera and Bera Behera have been substituted in his place.

The Munsif dismissed the whole suit. There was an appeal to the Subordinate Judge, who decreed it. There was next a second appeal to this Court, which was heard by Mr. Justice Roe sitting alone, with the result that the decree of the learned Subordinate Judge was set aside and in substitution therefore the following declarations were given to the plaintiffs:

(1) That it be declared that the transfer of Kusun Behera to Jasoda Dei was fraudulent, without consideration and invalid as against the plaintiffs.

(2) That by his purchase of the rights of Kusun Behera the plaintiff has good title as against the defendants Nos. 9 and 10 to the lands purchased in execution of his decree.

(3) That it be declared that the landlords'' suit against Jasoda Dei was fraudulently instituted with the intention of ousting the plaintiff from the land.

(4) That no execution of any decree obtained against Jasoda Dei will affect the rights of the plaintiff and Kusun Behera''s representatives.

Against this decree the landlords, defendants Nos. 1 to 8, prefer the present Letters Patent Appeal.

With regard to the declarations made by the learned Judge of this Court affecting the rights of the plaintiffs as against their transferor Kusun Behera and his representatives, it is conceded by the learned Vakil for the appellants that there can be no objection. No relief is claimed in this appeal as regards the first two declarations given by the learned Judge. We will not, therefore, consider that part of the decree of the learned Judge.

The contest really centres round the third and fourth declarations which affect the landlords, and it is contended that as against them the plaintiffs acquired no title by their auction-purchase in execution of their mortgage decree and they are not entitled to any declaration which in any way recognises their title as transferees in respect of a part of the holding. The effect of the declarations made by the learned Judge of this Court is indirectly to compel the landlords to recognise the transfer, and it is contended that Section 42 of the Specific Relief Act, cannot be invoked for this purpose. It is clear that the Orissa Tenancy Act, which came into operation in 1913, does not determine the rights of the parties but there is some doubt whether the Bengal Tenancy Act or Act X of 1859 is applicable. But there can be no doubt that whichever Act applies, no transfer of a part of a non-transferable occupancy holding is valid against the landlords without their consent in writing. The position, therefore, is that unless it can be shown that the entire'' body of landlords recognised the mortgage sale in favour of the plaintiffs, they cannot be said to have any title against the landlords in respect of this land. The first question, therefore, is, whether, although they have no title against the landlords, they are entitled to an injunction prohibiting the landlords from executing a decree obtained by them against a tenant alleged by them to be the lawful tenant of the land.

The second question also follows from this, viz., whether the plaintiffs are entitled to attack a decree obtained by the landlords against the alleged tenant on the ground that that tenant is not the legal tenant and on the ground that the decree is fraudulent. In my opinion the answer to both questions must be in the negative. It is true that the landlords, cannot interfere with the possession of the transferee of a part of a non-transferable occupancy holding and that if they do so, the transferee is entitled to recover possession from them by suit. That right to recover possession arises, not by reason of any title in the holding as against the landlords, but from the tenant''s undisputed right to transfer a part of his holding. Here the landlords have not yet dispossessed the plaintiffs and it is not known whether they will do so. When that time comes it will be open to the plaintiffs to adopt such remedies as the law gives them, but before that time comes the plaintiffs are not entitled to a declaration that a tenant alleged by the landlords to be their tenant is not in fact their tenant and that a decree obtained by the landlords against their alleged tenant is fraudulent. Having no legal title or interest which the landlords are concerned to deny, the plaintiffs cannot invoke the operation of Section 42 of the Specific Relief Act in this suit.

It is urged, however, that the suit is justified by the decision of their Lordships in the case of Dayamayi v. Ananda Mohan Roy Chowdhuri 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.). Having carefully considered the decision of their Lordships in that case, it does not seem to us that there is any justification for the contention that because a landlord cannot eject the transferee and because if he does eject him he is liable to restore possession, the transferee has a right to obtain a declaration prohibiting the landlord from proceeding with an action against his recorded tenant. The transferees here cannot be permitted to attack on the ground of want of consideration or fraud the conveyance made by Kusun Behera in favour of Jasoda Dei. If the holding should be sold they may possibly be competent to attack the sale but at this stage they have no right of suit.

Reliance is next placed upon a decision by a learned Judge of this Court sitting alone in Second Appeal No. 796 of 1915, where certain observations were made which may support the view that a transferee in the position of the plaintiffs is competent to obtain the declarations which they are seeking here- Bat on referring to the record of that case it would seem that the contest was between a transferee who had purchased a part of a non-transferable holding in execution of a mortgage sale and a co sharer landlord who had obtained a decree for rent against the recorded tenant. If the decree in that case had the effect of an ordinary money decree, possibly the mortgagee purchaser might be entitled to the declaration which he sought. But if the learned Judge intended to lay down the general proposition that a transferee of a portion of a non-transferable occupancy holding is entitled to attack the validity of decrees obtained by the landlord against his recognised tenant, then it seems to me that that view of the law is not supported by the Full Bench ruling in Dayamayi''s case 27 Ind. Cas. 61: 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.) on which the learned Judge relied. So far, therefore, as the above two decisions are concerned, they do not seem to support the contention of the respondents before us.

The learned Vakil for the respondents then urges that they are not trespassers, that they have certain rights as to possession against the transferror, the recorded tenant, and that they have also a right of re-entry in the event of dispossession against the landlords. These rights do not, however, in my opinion, render it competent for them to attack transactions and proceedings between the landlords and the recognised tenant to which they are not parties.

Finally it is contended by the learned Vakil for the respondents that in this case the transfer to the plaintiffs had been recognised by defendants Nos. 3, 5 and 6, who represent the greater part of the interest of the joint landlords. Now though it has been found that on the back of the sale "certificate issued to the plaintiffs on the 31st August 1910, defendants Nos. 3, 5 and 6 recorded their consent on the 28th January 1912, it is certainly a somewhat suspicious circumstance that this consent was given only two days before the first decree for rent was obtained by the joint landlords against Jasoda. However-that may be, the learned Subordinate Judge having come to the definite finding that defendants Nos. 3, 5 and 6 have recognised the transfer in respect of the mortgaged lands, his finding in this respect cannot be challenged. The question is, whether that recognition confers a right upon the plaintiffs to attack the rent-decree which those defendants -together with their co-sharers have obtained from their alleged tenant. In my opinion it does not. It is true that if some out of a number of co-sharers recognise the transfer either of a part or the whole of a non-transferable occupancy holding, the remaining co-sharers are not entitled to eject the transferee; and the case of Hossein Mahomed v. Fakir Mahomed 4 Ind. Cas. 740 : 10 C.L.J. 618 merely affirms the proposition that they can sue for joint possession with the transferee. That case certainly does not support the contention that by obtaining recognition from a co-sharer landlord the transferee acquires any rights or valid title in the holding itself as against the entire body of landlords. I think that notwithstanding such recognition the remaining co-sharers could sue the original tenant for the entire rent without impleading the transferee. In the present case, -therefore, the recognition of the transfer by defendants Nos. 3, 5 and 6 does not in any way operate to defeat the rent-decree which has been obtained by the entire body of landlords. If, as appears to be the case, defendants Nos. 3, 5 and 6 chose to repudiate their consent and to join the non-consenting landlords in suing the original tenant for the entire rent on the footing that the consent given by them does not operate to create a division of the tenancy, it was open to them to do so therefore, whether the Bengal Tenancy Act or Act X of 1859 applies, the division of the holding in this case was not operative for want of the necessary consent and the suit for rent brought by the joint landlords was a properly constituted action. It may be that the transferees in this case will be entitled to sue the defendants Nos. 3, 5 and 6 for damages for fraud, but that is a different matter and does not affect the present suit. The result, therefore, is that the appeal is decreed and the suit is dismissed against defendants Nos. 1 to 8 with costs in all Courts; The remaining defendants are not appealing and the decree as against them will stand. The effect of our decree, therefore, is that as against defendants Nos. 1 to 8 the declarations made by the learned Judge of this Court will be inoperative. It is to be noted that in the memorandum of appeal filed against the judgment of Mr. Justice Roe the name of Chandi Debia the widow of Sham-Sunder, defendant No. 6, does not appear on the record either as appellant or respondent but that of her husband appears in the category of respondents. Her failure to join her co-sharers in the Letters Patent Appeal cannot, however, debar the appellants from obtaining the relief which they seek.

Miller, C.J.

I agree.