Hanuman Ahir vs Mussumat Gobinda Koer

Prinsep, J.—Gobinda Koer and Ram Dulari Koer, who are wives of two brothers Janki Pershad and Kissen Pershad, were registered under the Land Registration Act of 1876 as proprietresses of certain property, Mouza Fendua. On the death of Ram Dulari, Gobinda Koer''s name was registered alone and, at the present time, continues. It seems from the plaint and the proceedings in the case that the death of Janki, the husband of Gobinda Koer, has led to disputes between Gobinda Koer and the surviving brother, Kissen Pershad, and this probably has caused the present suit. Gobinda Koer has exercised her rights of distraint under sec. 121 of the Bengal Tenancy Act to realise rents which he claimed to be due from certain tenants on this property. In order to release their crops, these tenants have paid in their rent and they now bring this suit, under sec. 140 of that Act, to recover compensation against Gobinda Koer. They deny Gobinda Koer''s title to the property and they maintain that Kissen Pershad is the real proprietor to whom they have directly paid rent and they accordingly ask, not only for compensation in consequence of the illegal distraint, but for a declaration that Gobinda Koer has no right to rent from them as their landlord. The first Court found that the rents were not paid either to Ram Dulari or Gobinda Koer, the registered proprietors, but to their husbands. The Munsiff accordingly held that Gobinda Koer was not entitled to make the distraint and that, therefore, the plaintiffs were entitled to compensation and a declaration that Gobinda Koer had no title to the rent notwithstanding the registration of her name.

The District Judge on appeal has set aside this order on the ground that the registration of Govind Koer''s name under the Land Registration Act is a complete answer to the plaintiff''s case and he has accordingly dismissed the suit.

The first point for our decision in this case is, whether the suit can be maintained under sec. 140 of the Bengal Tenancy Act. That section gives a right of suit to a person whose property has been distrained on an application made under sec. 121 in any case in which such an application is not permitted by that section It cannot be said that Gobinda Koer, whose name was registered under the Land Registration Act, so far as we can learn, with the permission of both Janki and Kissen Pershad, (which is however not essential or the purpose of these cases) was not lawfully entitled to distrain the property of any of the tenants of this Mouzah(sic) rears of rent. Under the Land (sic) tion Act (VII B. C. of 1876 (sic) person in the position of the (sic) bound to pay this rent to any other person but Gobinda Koer and if she was the only person thus entitled to claim rents from the tenants of this Mouzah, it cannot be properly said that the application to distrain was not permitted by sec. 121, unless it can be shown that no arrears of rent were due from the tenants. The only way, in which the tenants attempt to show that no rent was due from them, is by saying that they have already paid the rents to Kissen Pershad. But under the terms of the Land Registration Act, any such payment to Kissen Pershad would not absolve them from liability to pay rent to the registered proprietor. If again, we consider the terms of section 60 of the Bengal Tenancy Act, the relations of the parties to these suits are made more clear. If, instead of exercising the powers of distraint under sec. 121, Gobinda Koer, the registered proprietor, had sued the present plaintiffs for their rents, they would have been unable to plead in defence that the rents were due to Kissen Pershad, or to any third person, nor would they have been able to plead non-liability in consequence of payments made to such a person. Then again, if we consider the terms of sec. 121 it is shown by the proviso that an application for distraint shall not be made by any proprietor unless his name and the extent of his interest in the land in respect of which the arrear is due, shall have been registered under the Land Registration Act. This shows somewhat in the same manner as sec. 60, that a tenant can, in a suit for compensation in consequence of (sic) distraint, make no defence that he (sic) of a third party paying rent to (sic) than he can in a suit brought (sic) landlord to recover rent from him. The plaintiffs cannot ask for our sympathy on any ground of hardship done to them. Their liability to pay rent is clearly declared by sec. 78 of the Land Registration Act and if they have chosen to pay rent to any person other than the registered proprietor, they have only themselves to blame. For these reasons I think that these appeals should be dismissed with costs.

Ghose, J.

I concur. The object of the suit, as far as I can understand, is a twofold character, first, to have it declared that the defendant is not entitled to distrain the crops on the plaintiff''s property, and secondly, to recover compensation from the defendant by reason of the illegal distraint. Now, so far as the second branch of the case is concerned, it seems to me, as has been explained by Mr. Justice Prinsep, that the plaintiffs cannot succeed, for the simple reason that they have not shown that the application that was made by the defendant was in violation of the provisions of sec, 121 of the Bengal Tenancy Act. Sec. 140 of that Act provides that any person, whose property is distrained on an application made under sec. 121 in any case in which such an application is not permitted by that section, may institute a suit against the applicant for the recovery of compensation. The plaintiffs were therefore bound to show that the application that was made by landlord was an application which was not permitted by the provisions of sec. 121 On referring to sec. 121 of the Act it will be found that an application shall not be made for distraint unless the distrainer is a proprietor or manager whose name has been registered under the Land Registration Act. This clearly shows that a distraint can only be made by a person whose name has been so registered. It seems to me, therefore, that the proceedings that were taken by the defendant, who is the registered proprietor of this property, were proceedings which she was entitled to take under sec. 121 of the Act. Then so far as the other prayer of the plaint is concerned, it appears to me that sec. 60 of the Act, taken in connection with sec. 78 of the Land Registration Act, is a complete answer; for, if the defendant had brought a suit for recovery of rent against the plaintiffs, it would cot have been open to them to plead, in defence to that suit, that the rents were not due to her or that they had been paid to a third party. Here what the defendant did, was to exercise her right of distraint for the purpose of realizing that rent as to which, if she had brought a suit in Court, the plaintiffs would have had no answer. Upon these grounds I agree in thinking that these appeals should be dismissed with costs.