Hirday Narain Singh and Others vs Jugal Prasad Singh

Ross, J.—These are fifteen appeals by the defendants in rent suits brought by the respondent for the rent of the years 1327 to 1330. The plaintiff'' purchased the interests of Babu Gangadhar Das, a vakil of this Court who also practises in the Court of the District Judge of Patna and of Maulvi Lsakat Hussain in four tauzis of village Karnauti in 1330 along with the arrears of rent due for the years 1327 to 1329. The principal defence was a plea of payment which the Munsif accepted except in regard to the year 1380. He, therefore, decreed the suits for that year only with the exception of two suits out of which Second Appeals Nos. 778 and 779 arise which were dismissed altogether as not being properly framed. The District Judge on appeal decreed the suits in full.

A preliminary objection is taken that u/s 153 of the Bengal Tenancy Act no appeal lies in twelve of these cases where the amount of the decree is less than Rs. 100. The contention on behalf of the appellants, is that a question of title is raised which prevents the operation of Section 153 of the Bengal Tenancy Act. That question is as to the validity of the gale of arrears of rent by a practising vakil. It is contended that such a sale is illegal u/s 136 of the Transfer of Property Act. I shall deal with that question later. But on the present point it is sufficient to say that there is no question relating to title to land or to any interest in land as between parties having conflicting claims thereto within the meaning of Section 153 of the Bengal Tenancy Act. These appeals, except Second Appeals Nos. 681, 778 and 782 are barred by Section 153.

Four points have been taken on behalf of the appellants. The first is that the claim for 1327 is barred by time; that the suit is governed by Article 110 of the First Schedule to the Indian Limitation Act and not by special limitation provided by the Bengal Tenancy Act inasmuch as the plaintiff is an assignee of the arrears of rent and therefore, not entitled to the benefit of the special limitation. Reference was made to the decisions in Hayat Majid v. Hazari Lal [1921] 63 IC 424 and Gajadhur Prasad v. Thakur Prasad Singh [1917] 1 Pat. LJ 506. These were cases, as far as the reports show, of mere assignments of the arrears of rent and they were, therefore, clearly governed by Article 110. But in the present case the plaintiff purchased the landlord''s title along with the arrears of rent and became the landlord. He was, therefore, entitled to sue for rent and to obtain a rent-decree and the benefit of Section 75 of the Bengal Tenancy Act: Arthur Henry Forbes v. Maharaj Bahadur Singh [1914] 41 Cal. 926.

The plaintiff is the landlord and sues as the landlord; and the fact that the arrears accrued due before he acquired the title of landlord does not affect his remedy. The test is the existence of the relation of landlord and tenant at the time the remedy provided by law is sought to be expressed (cf. page 939).

He is not a mere assignee of the arrears of rent and, in my opinion, the case is governed by the special limitation provided by the Bengal Tenancy Act.

In the second place it was urged that with regard for the question of payment the appeals ought to be remanded, because the learned District Judge has relied upon inadmissible evidence. It appears that one Jagarnath Lal, the plaintiff''s patwari, was examined-in-chief before the Munsif, but did not appear for cross-examination. He was produced before the Court of appeal and the defendants cross-examined him there under protest. It is argued that, as his evidence had been expunged by the trial Court, all that the District Judge could do was to remand the cases to the trial Court for the examination and cross-examination of this witness; and that the procedure adopted by him was irregular and that he erred in law in taking the evidence of Jagannath Lal into consideration. Now the Munsif has observed that the evidence which this witness gave was expunged but he had admitted that receipts A to A26 were in the handwriting of one Goberdhan Singh and that Exs. B to B4 were in his own handwriting; and that this part of the evidence bad been retained with the consent of the defendants'' pleaders. This was evidently done on the ground that this part of his evidence went in favour of the defence.

Now the learned District Judge, in dealing with the evidence of Jagarnath Lal, is careful to refer to no other part of his evidence than that which had been accepted by the defence. He refers to the admission by Jagarnath Lal of the genuineness of the receipt Ex. B series and to his admission of certain receipts as being written by Goberdhan. To no other statement of this witness has the District Judge referred. He compared the admitted signatures of Jagarnath Lal on receipts Ex. B series with the other receipts which purported to bear his signature and, on a comparison of these signatures, has come to the conclusion that the latter receipts were not genuine. This conclusion is not based upon any denial by the witness, but upon the District Judge''s own observation. There is nothing in the references in the judgment to the evidence of this witness to justify a remand on this ground.

The third point taken was that the assignment of the arrears of rent by Baba Gangadhar Das, as being the sale by a practising vakil of a chose-in-action, is illegal u/s 1S6 of the Transfer o Property Act. Learned Counsel relies on the words "traffic in" in that section. Now, while this expression may in certain circumstances include the transaction of sale, it connotes something more than a mere sale. But whether a mere sale would amount to "trafficking" in any particular circumstances is a question of fact. This point was not taken in the Court below and there is no finding upon it. Prima, facie there is no reason why this sale should be prohibited as there is evidently no harm in it and learned Counsel was unable to show any authority for the proposition that a mere sale of this kind by a legal practitioner is invalid.

The last point Urged was with regard to Suit No. 1906 out of which Second Appeal No. 778 arises and Suit No. 1907 (Second Appeal No. 779 which has been held to be barred by Section 158). The facts are these: There are two tenants Hirday and Durga who were brothers. Durga is dead and left four sons, only two of; whom were impleaded; and the argument is that, as there is no presumption that the contract to make payment was both joint and several and as there is no proof of severalty, the suit is not maintainable in its present form. Now it is necessary to draw a distinction There are two questions: first, whether a suit could have been brought against one only of the original tenants; and secondly, whether the suit as framed was a good suit against both the tenants. It seems clear that, while the liability of the sons of Durga, the deceased tenant, would have been a joint liability among, themselves, the estate of Durga has not been properly represented by impleading only two out of his four sons. There can, therefore, be no decree so far as the two sons of Durga are concerned. But the question still remains whether a decree for the whole of the rent cannot; be passed against Hirday, one of the two original tenants.

This question seems to be concluded by the provisions of Section 43 of the Indian Contract Act, as well as by the decisions in Krishna Das Roy v. Kali Tara Chowdhurani [1918] 22 C.W.N. 289; Beradar Singh v. Bachha Mahto [1920] 5 Pat. L.J. 32 ; and Kesho Prasad Singh Vs. Shamnandan Rai and Others, .

The result is that all these appeals must be dismissed with costs. The decree in the suit out of which Second Appeal No. 778 of 1925 arises will be modified by being drawn up against Hirday Narain Singh alone.

Das, J.

I agree.