Jung Singh and Others vs Dularchand Mahto and Others

Kulwant Sahay, J.—This is an appeal by the plaintiffs and it arises out of a suit for rent. The rent was claimed for the period from 1326 to the 8-annas kist of 1328 F.S. The plaintiffs claim under a registered thica patta dated the 17th May, 1919 executed by the 16 annas landlord who was the pro forma defendant in the suit, the thica being for a period from 1327 to, 1335 F.S. This thica was preceded by an amal dastak dated the 5th of Asin 1326 granted by the 16-annas proprietor to the plaintiff No. 1 alone for the year 1326. The defence of the defendant-tenant was that the plaintiffs had no title as landlords, that one Shujait Ali held the village in which the holding in dispute is situated under a lease dated the 11th November, 1914, granted by the proprietors for the years 1322-1330, that Shujait Ali was dead and his heirs were in possession, and that the rent for the years in suit had been paid to the heirs of Shujait Ali. The proprietor entered appearance and stated that Shujait Ali surrendered his lease in 1325, and thereafter the amal dastak and the thica patta were granted to the plaintiffs. The learned Munsif decreed that suit. On appeal the learned Subordinate Judge has set aside that decree and has dismissed the suit on the sole ground that the plaintiffs had failed to make out their title to sue.

On second appeal by the plaintiffs it is contended that the plaintiffs stand recorded in the Collectorate in Register D, and that u/s 60 of the Bengal Tenancy Act the tenant is not entitled to plead in defence to the claim of the plaintiffs, who have been registered under the Land Registration Act, that the rent is due not to the plaintiffs but to a third person.

In my opinion this contention is sound and ought to prevail. The learned Munsif referred to the fact that the plaintiffs'' names appear in Register D. The learned Subordinate Judge makes absolutely no reference to this fact; he merely considers the question of the surrender by Shujait Ali and-concludes that the plaintiffs had failed to prove the alleged surrender and, that, therefore, the thica of Shujait Ali still continues, and that the lease to the plaintiffs was suspicious and could not, in any event, prevail against the lease granted to Shujait.

Having regard to the provisions of Section 60 of the Bengal Tenancy Act, I am of opinion that it was not open to the tenants to plead that the rent was not due to the plaintiffs but to the heirs of Shujait. On behalf of the respondents reliance has been placed upon. Durga Das Hazra v. Samash Akon 4 C.W.N. 606 and Girish Chandra Chongdar v. Satish Chandra Sarkar 12 C.W.N. 622. Both of these decisions were, however, considered by this Court in Nand Kuer v. Jodhan Mahton 61 Ind. Cas. 386 : 6 P.L.J. 658 : 2 P.L.T. 337 : (1921) Pat. 201. The decision in Durga Das Hazra v. Samash Akon 4 C.W.N. 606 was not followed, and the decision in Girish Chandra Chongdar v. Satish Chandra Sarkar 12 C.W.N. 622 was distinguished, and it was held by this Court that a person registered under the Land Registration Act was entitled to recover rent from the tenants without any-further proof of title, and that the tenants were not entitled to plead that the registered proprietor was not in fact the proprietor and that the rent was due to a third person. It is contended on behalf of the respondents that a thicadar is not required under the provisions of the Bengal Land Registration Act to have his name registered, and that Shujait Ali as thicadar could recover rent from the tenants even if he was not registered under the Land Registration Act, and that the proprietor who was registered and who had granted the thica, to Shujait Ali could not be heard to say that payment of rent by the tenant to Shujait Ali was not a payment which he was bound to recognize inasmuch as Shujait Ali was not recorded. In my opinion this contention has no force. It is true that a thicadar is not required to have his name registered under the Land Registration Act; but if a thicadar gets his name: registered, it is not open to the tenant to plead that rent is payable-to another thica; dar who has not got his name registered.-The registered proprietor assigns his, right to recover rent from tenants to the thicadar,. and a payment of rent to the thicadar is in effect a payment to the proprietor and, therefore, although a tenant can successfully plead that a payment of rent to the thicadar of the proprietor was a good payment, yet when the question, arises between two sets of thicadars one of whom is registered and the other is no! registered, I am of opinion that it is not, open to the tenant to plead payment to the unregistered thicadar in defence to a claim; by the registered thicadar.

As I have said the learned Subordinate. Judge has not considered the effect of the registration of the plaintiffs'' names in Register D. The parties do not agree as to the date when the plaintiffs were registered. According to the plaintiffs-appellants they were registered on the 21st March, 1920, which corresponded to the 16th of Chait 1327, and payment is alleged to have been made to the heirs of Shujait Ali under a compromise in August, 1920. It is, therefore, necessary to find as to when the plaintiffs were registered in the Collectorate under the Land Registration Act, and also as to whether any payment was made by the defendants to the heirs of Shujait for any portion of the year in suit prior to the registration of the plaintiffs'' names in the Collectorate.

The decree of the learned Subordinate Judge must, therefore, be set aside and the case remanded to him for re-hearing. He must consider the question as to whether the plaintiffs are recorded under the Land Registration Act and, if so when they were recorded, and whether any payment was made by the defendants to the heirs of Shujait for any of the years in suit before the date of such registration. A decree will be made in favour of the plaintiffs for such arrears of rent as were not paid to the heirs of Shujait before the date of the registration of the plaintiffs. Costs will abide the result.