Jaideb Thakur and others vs Jamahir Missir and another

Das, J.—This appeal arises out of a suit instituted by Jamahir Missir for declaration of his title to, and for confirmation of possession or in the alternative for recovery of possession of, certain lands specified in the plaint. The material facts are as follows:-

The appellants who were the defendants first party in the action were in possession of the disputed land as occupancy tenants under the defendants second party. The record-of-rights shows that the defendants first party are jointly interested in the holding in question, but it appears that only one of them, Chiranjiv, was recorded in the landlord''s sherista as the occupancy tenant in respect of the holding. The plaintiff appears to have taken a mortgage of the disputed land from the defendants first party and to have entered into possession as a usufructuary mortgagee. The landlord then instituted a rent suit against Chiranjiv, the only recorded tenant, and obtained a decree as against Chiranjiv. In execution of that decree, he caused the right, title and interest of Chiranjiv in the holding to be sold and it was in fact sold and was purchased by the plaintiff himself in the benami name of his wife. The defendants first party appeared not to have noticed the events which resulted in the sale of the occupancy holding and they in the usual course tendered to the plaintiff the mortgaged money which the plaintiff accepted. Thereupon the defendants first party obtained possession of the occupancy holding. The plaintiff then brought the suit out of which this appeal arises for recovery of possession of the occupancy holding. The plaintiff''s case is that the decree obtained by the landlord as against Chiranjiv bound the entire holding and that his title as a purchaser cannot now be defeated by the production of the record-of-rights which may favour the claim of the defendants first party.

The learned District Judge in the Court below gave effect to the contention raised on behalf of the plaintiff and gave him a full decree in respect of the land in dispute. The important question which the learned Judge had to decide was, whether the decree obtained by the landlord as against Chiranjiv was a rent decree, or whether it was a money decree and if it was a rent decree whether it was executed as a rent decree under the Bengal Tenancy Act, or as a money decree under the Civil Procedure Code. The learned Judge conceded that the khatian mentioned four persons as tenants in respect of the land, but thought that, as Chiranjiv was the only recorded tenant, and, as Chiranjiv was the head of the family, the decree against Chiranjiv bound the entire holding and that the decree had the effect of a rent decree. The learned Judge was apparently much influenced by the case of Jeolal Singh v. Gunga Pershad (1884) 10 Cal. 996. That was a case where a tenure standing in the name of one of the joint holders thereof was sold in execution of a rent decree, and the Court had to consider whether the sale bound the tenants other than the tenant against whom the action was brought. Sir Richard Garth, in delivering the judgment of the Court, said that where it was clear from the proceedings, that what was sold and intended to be sold was the interest of the judgment-debtor only, the sale must be confined to that interest, although the decree-holders might have sold the whole tenure if they had taken proper steps to do so, or although the purchasers might have obtained possession of the whole tenure under the sale; but that where it appeared that the judgment-debtor had been sued as representing the ownership of the whole tenure, and that the sale, although purporting to be of the right and interest of the judgment-debtor only, was intended to be, and in justice and equity, ought to operate as a sale of the tenure; the whole tenure then must be considered as having passed by the sale. Upon the facts the learned Judge found that the tenant against whom the suit was brought was the manager of the joint family and was alone registered in the zemindar''s sherista as proprietor of the tenure. On these facts the learned Judge, applying the law which he laid down, came to the conclusion that there was complete representation in the case and that the decree against the recorded tenant was operative against the whole body of tenants. It will be noticed that this was a case of a joint family: but in the case of Nitaui Behari Saha Pramanick v. Hari Govinda Saha (1899) 26 Cal. 677 the Calcutta High Court came to the conclusion that the principle laid down in the leading case of Jeolal Singh v. Gunga Pershad (1884) 10 Cal. 996 would apply even though the tenure did not belong to a joint family. The law was precisely laid down by Mr. Justice Bannerji in these words:-

The reason for the decision is that, as the law required tenants to register their names in the landlord''s office, unregistered co-owners of a tenure by their omitting to have their names registered, must be taken to have acquiesced in the registered tenant representing them in their dealings with the landlord; that in a suit for rent against the registered tenant he must be taken to have been sued as representing the ownership of the whole tenure; and that a sale in execution of the decree obtained in such a suit though in terms only a sale of the right, title and interest of the judgment-debtor, must be held really to pass the right, title and interest, not only of the registered tenant but also of the unregistered co-owners whom he represents; and that reason holds good quite as much in this case as in the case relied upon.

Mr. Mitter appearing on behalf of the respondents strongly relied upon these two cases and upon other cases which he cited before us. But all these cases are cases of sales of tenures, and it must be remembered that so far as tenures are concerned, the Bengal Tenancy Act makes it obligatory upon the tenants to have their names recorded in the landlord''s sherista whenever they become entitled to them by succession. In the ease of a tenure, therefore, where only one tenant takes the trouble to have his name recorded in the landlord''s sherista, and the others, either by design or negligence fail to do so, it may be presumed that the tenants who failed to have their names recorded in the landlord''s sherista consented to the tenant who had his name recorded, representing them both in transactions and in suits affecting the landlord and the tenants.

But other principles arise where the Court has to deal with the case of the sale of a holding, as to which there is nothing in the Bengal Tenancy Act compelling raiyats to have their names recorded in the landlord''s sherista. Indeed in the case of Ashok Bhuiyan v. Karim Bepari (1905) 9 C.W.N. 843 it was denied by the Calcutta High Court that any presumption as to representation could be drawn by a Court where only one of the co-raiyats had his name recorded in the landlord''s sherista, and the others failed or neglected to do so. The question has, however, been discussed in various cases, of which it is sufficient to mention one, namely, the case of Jagattara Dassya Vs. Daulati Bewa and Others . In that case it was held that it is a question of fact in each case whether the recorded tenant does in fact represent the holding in dispute and that the fact that only one tenant is registered is an item in the evidence upon the question whether he is or is not the representative tenant qua the landlord.

If the finding of the learned District Judge had been that Chiranjiv completely represented the holding qua the landlord, his finding would have been a finding of fact binding on us in second appeal. But, as I read the judgment of the learned District Judge, he came to the conclusion that the decree was to be regarded as a rent decree first because Chiranjiv was the only recorded tenant, and secondly because Chiranjiv was the head of the family. I do not think that the conclusion that he did represent the holding qua the landlord follows from the findings of fact at which the learned Judge arrived. It may be that Chiranjiv did represent the holding qua the landlord and that the learned District Judge on a consideration of the whole evidence in the case will come to that conclusion, but it is impossible to say that it follows as a matter of law that a co-tenant does represent the holding qua the landlord when all that is shown is that Chiranjiv is the only recorded tenant and is the head of the family.

It is necessary therefore that this case should be re-heard by the learned District Judge: but I think it desirable to point out that if it should appear that there was no succession at all, that is to say, that the settlement was with Chiranjiv, then the claim put forward on behalf of the defendants first party must fail. If Chiranjiv went and applied for a settlement and the landlord settled the land with Chiranjiv then whatever the position may be as between Chiranjiv and his brother, qua the landlord he was the only tenant, and the case of the defendants first party must fail. But if on the other hand Chiranjiv along with his brother became entitled to the holding by succession, then the learned Judge will have to consider whether Chiranjiv did in fact represent the holding qua the landlord. In discussing the question, the learned Judge will give due weight to the two facts which he has found in favour of the respondents, namely, that Chiranjiv was the only recorded tenant, and that he was the head of the family.

I would allow the appeal, Set aside the judgment and decree of the Court below and remand the case to that Court for a decision according to law. Costs will follow the result and will be disposed of by the lower Appellate Court.

Adami, J.

I agree.