Maharaj Singh vs Rai Anath Nath Bose

Meredith, J.—This case has been referred to a Division Bench by Sinha J. It is a petition by the decree-holder in revision against an order allowing a claim case under Order 21, Rule 58, Civil P.C. The ground taken is that the learned Munsif had no jurisdiction to entertain the application because it was barred by the provisions of Section 170(1), Bihar Tenancy Act.

The facts are as follows. The claimant opposite party obtained a decree against the tenant in Rent Suit No. 1981 of 1935. In this case he had impleaded the cosharer landlords, including the petitioner. He obtained his decree on 10th January 1936, and subsequently, on 25th August 1989, he purchased the holding consisting of 8.27 acres in execution of his decree, and on 31st December 1940, he obtained delivery of possession.

Meanwhile, however, in the year 1937 there had been a civil court partition between the landlords in, Suit No. 36 of 1936, and by this partition parts of the holding were allotted to the takhtas of different landlords. The petitioner obtained a takhta of one anna and odd. Then in the year 1943 he brought a rent suit against the tenant in respect of the portion of the holding allotted to his share for his share of the rent for the years 1347 to 1350 Fasli. He sued as sole landlord, and impleaded none of the other landlords in. eluding the opposite party.

The learned Munsif held that the petitioner''s, decree was not a rent decree as the civil court partition was not binding on the tenants, and the suit was, therefore, by a cosharer landlord in respect of a portion of the holding. Section 170, Bihar Tenancy Act, was not, therefore,, applicable to the case. He accordingly entertained and allowed the claim.

Mr. A.N. Lal for the petitioner urges, first, that the civil court partition had the effect of splitting up the holding, and, therefore, the decree was a rent decree. Secondly even if it was not a rent decree but a money decree, it was not open to the claimant to contend that on that ground Section 170 was not a bar.

On the first point Mr. Lal relies upon a decision of Mullick J., in Ram Lochan Koer v. Jagernath Misser AIR 1916 Pat. 79. That learned Judge pointed out that in a partition under the Estates Partition Act the holdings of the tenants can be split up, and he said he could see no difference in that respect between a partition under the Estates Partition Act and a partition in a civil Court. There is, however, if I may say so with respect, a very important difference. In the former case the tenants get notice, in the latter they do not and are no parties to the proceeding. The same question was considered by Khaja Mohammad Noor J. in Mt. Nepur Kuer v. Bhan Partap AIR 1935 Pat. 227. That learned Judge pointed out that the opinion expressed in Ram Lochan Koer v. Jagernath Misser AIR 1916 Pat. 79 was an obiter dictum as the Judge had held that in fact the tenant had accepted the division of the holding. He went on further to say:

Before the partition each cosharer has his undivided share extending over the entire holding; after the partition each cosharer holds different pieces of the land comprising the holding in severalty, but the holding is still a holding under all the landlords.

In my view, the decision in AIR 1935 Pat. 227 was correct. In a subsequent case Deo Narain Singh v. Mt. Lila Kuer AIR 1936 Pat. 96 Wort J. while deciding upon the evidence in the case before him that the tenant had accepted the splitting of his holding by payment of the rent to different proprietors, nevertheless expressed agreement with the view taken by Khaja Mohammad Noor J. in AIR 1935 Pat. 227. I am decidedly of opinion that so far as the tenant was concerned, the matter was not affected by the civil court partition. The petitioner''s suit in which he did not implead his cosharers and did not claim in accordance with the provisions of Section 148A, Bihar Tenancy Act, was not a rent suit.

With regard to the second point, from the wording of Section 170(1) it would appear to me that what the Legislature intended was to bar the operation of Rule 58 of Order 21, Civil P.C., only in cases where the execution is of a rent decree, that is to say, where it is the holding that is being sold, and not the right, title and interest of the judgment-debtor. The wording is:

Rules 58 to 63 (both inclusive) and 89 of Order 21, Civil P.C., 1908, shall not apply to a tenure or holding or portion of a holding attached in execution of a decree for arrears due in respect of the tenure or holding.

It is significant that whereas the Section has been made applicable to a portion of a holding attached in execution of a decree, it is still stated that the arrears must be due in respect of the tenure or holding itself, that is to say, the holding as a whole. Mr. Lal has referred to the decision of Fazl Ali J. (as he then was) in Dwarka Singh v. Nema Singh AIR 1929 Pat. 195.

The learned Judge in that case followed the Full Bench decision of the Calcutta High Court in Amrita Lal Bose v. Nemai Chand Mukhopadhaya (01) 28 Cal. 382. That decision has been examined and explained by a Division Bench of this Court consisting of Khaja Mohammad Noor and Dhavle JJ. in Deonandan Prasad v. Pirthi Narayan AIR 1933 Pat. 32. The learned Judges point but that what was ruled in the Full Bench case was that Section 170, Ben. Ten. Act, barred a claim u/s 278 (Order 21, Rule 58), Civil P.C., in all cases where it was shown that the decree was for arrears due in respect of a tenure or holding. They drew a distinction, however, between cases where the claimant attempted to show that the decree was not a rent decree because the suit was against a wrong person and not against the tenant of the holding, and cases where he could show that the decree was not a rent decree at all as the suit had not been properly constituted under the Tenancy Act. Dhavle J. said:

The question, however, whether the Section (Section 170) bars a claim under Order 21, Rule 58, when the claimant asserts that the decree under execution was not a rent decree at all, but only a money decree, was not before the Full Bench. The section presupposes a rent deoree, and it has been repeatedly held that a claim may be made under Order 21, Rule 68, on the ground that the decree is not a decree of the kind presupposed in the section. Claims have, for instance, been allowed where it was shown that the subject-matter of the suit was not a tenure or holding, or that the decree was not a rent decree because the landlord had brought his suit in respect of more than one tenure or holding, or not being the sole landlord of the tenure or holding, had failed to observe the special provisions of Section 148A without which it was impossible for him to obtain a rent decree.... It has been contended that he was entitled to show that the decree under execution was not a rent decree, but it is claimed that he was not entitled to show this by establishing that the decree was obtained against a wrong party. That would really be establishing that the decree was a nullity, and establishing it under Order 21, Rule 58, which is excluded by Section 170, Ben. Ten. Act.

Mr. Lal has cited a number of other cases, but so far as I can see the propositions laid down in the case just cited have never been dissented from in any case in this Court. The distinction made is a clear one, and in fact so far as I can see there is no conflict of opinion on the point, and so far as this Court is concerned the matter is settled. Surpat Singh v. Shital Singh AIR 1936 Pat. 480 is another case on the point. There prior purchasers from the tenants applied under Order 21, Rule 58, for release of the holding, and contended that the landlord''s decree was only a money decree. The Munsif upheld the contention. It was held in revision that Section 170, Bihar Tenancy Act, was a bar to the application of Order 21, Rule 58, but their Lordships explained that the reason why it was a bar was because the tenants did not deny that the decree-holder was the landlord, or that there were actually arrears due for the holding for the years in suit in respect of which the rent decree was passed, but they attacked the decree on the ground that it had been wrongly obtained against the original tenant who had sold the holding to the claimants. They did not dissent from the decision in Deonandan Prasad v. Pirthi Narayan AIR 1933 Pat. 32, but rather referred to it with approval.

In Rani Chhater Kumari Debi v. Bhagwati Prasad AIR 1937 Pat. 278 the distinction between the two classes of cases was again explained by Khaja Mohammad Noor J. That learned Judge said:

Generally speaking the position is this. If it can be shown that the decree was not a rent decree a third party can file objections under Order 21, Rule 58. For instance, if it appears that the plaintiff is not the 16 annas landlord of the tenure or holding, or that the suit was in respect of a portion of a holding or tenure, or that rents for two or more holdings or tenures had been claimed in one and the same suit, the claim is entertainable; but if the decree is a rent decree but against a wrong person, the claim is barred. Though sometimes it may be difficult to distinguish between cases in which Order 21, Rule 58 is applicable and where it is not, the distinction is there and can be found out for all practical purposes.

The learned Judge went on to refer to the decision of the Privy Council in AIR 1930 193 (Privy Council) which was cited before the Court against the claimant''s contention, but the learned Judge pointed out that it was rather in favour of it, and quoted a passage which I should like also to quote:

In their Lordships'' view it is only arrears of rent that are charged by Section 65 upon the tenure, and it is only such arrears that can be realised in execution by the sale of the tenure. Chapter 14 of the Act does not purport to enlarge or restrict the exercise of this right, but only provides the machinery for working it out. If a landlord seeks to use this machinery for the recovery of something that is not rent, to the prejudice of a third party on whom the decree is not binding, it would be a manifest injustice to deny him the right to object, and it would require very dear words in the Act to induce their Lordships to impose this penalty upon him.

Chapter 14 of the Act has now become chap. 13, Bihar Tenancy Act. It is the chapter in which Section 170 occurs, and it is clear from what their Lordships said that they considered Section 170 only applicable to rent execution cases. It is true they were speaking of a suit, but the principle is clearly set out and will obviously be applicable upon the same grounds to an application under Order 21, Rule 58.

In my opinion, the present case was not one to which Section 170 provided any bar. The learned Munsif, therefore, had jurisdiction to entertain the claim and decide it upon the merits.

Mr. Lal finally argues upon the basis of Krishna Chandra Dutta Chowdhury Vs. Dina Nath Biswas, that the claimant was a representative of the judgment-debtor, and, therefore, his proper remedy was by an application u/s 47, Civil P.C., and not by a claim under Order 21, Rule 58. It is not, however, the claimant''s case that he is a representative of the judgment-debtor. His case is that he purchased the holding in execution of a previous rent decree. Obviously he could not have been a representative of the judgment-debtor. Krishna Chandra Dutta Chowdhury Vs. Dina Nath Biswas, was a case with special circumstances where transfer could not be made and was entirely ineffective without the consent of the landlord. The landlord''s consent had not been obtained, and the purchasers were held bound by the decree.

In my opinion, the application fails, and I would dismiss it with costs. Costs are assessed at three gold mohurs.

Ray, J.

I agree.