Leakat and Another vs Dildar Ali Khan and Others

Saunders, J.—In the suit out of which this appeal has arisen the plaintiff as a co-sharer landlord of a non-transferable occupancy holding asked for possession of the holding jointly with persons to whom it had been sold and jointly also with the other co-sharer landlords. The holding was bought by the defendants of the first party in 1916 when the defendants of the third party were the landlords. In 1918 the plaintiff acquired all except a very small fraction of the interest of those landlords at a sale in execution of a certificate for arrears of cess.

The share he bought was 9 gandas 3 cowris, the original landlords being left with only 2 karants 18 ren. The plaintiff''s name was duly registered under the Land Registration Act, in respect of the share he had bought but he did not obtain delivery of possession from the Court nor apparently did he take possession of it himself. The defence of the defendants of the first party was that as the plaintiff had not obtained possession of the share which he had acquired at the Court sale he was not entitled to sue for possession of the holding.

They also pleaded recognition by the former landlords of the transfer of the holding to themselves, the plea of recognition being based upon a receipt given to them by one of the landlords of whom there were three, early in 1919, a few months after the Court sale.

The suit was decreed by the trial Court and the appeal of the defendants who were the transferees of the holding was dismissed by the Subordinate Judge of Bhagalpur. They are the appellants in this second appeal and the grounds of appeal which they have taken are those on which the suit was contested. There is no substance in the plea that the respondent had no right to institute the suit. It was brought within twelve years after the date of the sale of the landlord''s interest to the respondent, and the fact that, although duly registered under the Land Registration Act, he had not obtained possession of the entire interest is no bar to his being given possession of a share of a holding appertaining to that interest.

The main contention of the appellants is that recognition of the transfer by one of the landlords, after the respondent became a landlord, is binding upon the respondent because it was obtained in good faith from a de facto landlord. The learned advocate for the appellants relied upon the decisions in Zoolfun Bibee v. Radhica Prosanno Chunder (1877) 3 Cal 560, Mohima Chunder v. Hazari Pramanik (1890) 17 Cal 45, Binad Lal Pakrashi v. Kalu Pramanik (1893) 20 Cal 708, Sukumari Ghose v. Haldhar Mandal 1914 Cal 685 and Atal Chandra v. Lakhi Narain (1909) 2 IC 417. The decisions in these cases are to the effect that a tenant let into possession by a de facto landlord is not a trespasser but has a good title. They were all however cases in which the tenant obtained possession under a landlord who had not then been found to have no title and thus the decision presupposed good faith on the part of the landlord.

It was held in Upendra Narain v. Protab Chandra 8 CWN 320 that the case of Binad Lal Pakrashi v. Kalu Pramanik (1893) 20 Cal 708 had made a great encroachment on the strict law according to which a landlord who has no title can give no title to a third person, and a person who has a title can give a title to another only for as long as his own title endures; and that it was never intended to be laid down that a person knowing that he had no title could induct persons into the lands of others or that the persons so inducted could not be evicted by the rightful owners. Similarly it was decided in the case of Hiranmoy Kumar v. Banka Behari 1917 Cal 625, that a person taking settlement of land from a trespasser in de facto possession is not entitled to remain in possession as a tenant against the rightful owner unless it is found not only that he acted in good faith in taking the settlement but that the person also from whom the settlement was taken was acting in good faith in making the settlement with him.

It cannot be reasonably contended in the present case that the landlord who accepted rent from the appellants after his interest had been sold to the respondent acted in good faith. There is therefore no ground for interference with the decisions of the lower Courts, and I would accordingly dismiss the appeal with costs.

Fazl Ali, J.

I agree.