Mohammad Waliur Rahman vs Mt. Sita Kuer and Others

Mohammad Noor, J.—This second appeal arises out of a suit for arrears of rent along with a claim for enhancement of rent u/s 30(b), Ben. Ten. Act. Both the claims were decreed by the trial Court but dismissed by the Court of appeal below. The plaintiff is the sole recorded proprietor of an estate bearing Tauzi No. 12618 of village Asafpore Sultanpore which was formed after a collectorate partition in the year 1321 fasli. The holding in suit measures 2 decimals 53 acres. It originally belonged to one Budhan Mahton. It was sold in execution of a rent decree and purchased by Bhagwat Sahai, defendant 3.

Thereafter the proprietary interest of the plaintiff in this holding alone was sold in execution of a decree in favour of Bhan Prasad, husband of defendant 1, and Mt. Ramdulari Kuer, sister of the said Bhan Prasad, and purchased by the decree-holders. The plaintiff''s case was that the real purchaser of the holding was not defendant 3 but defendants 1 and 2. This case was disbelieved by both the Courts below who have held that defendant 3 was the real purchaser and raiyat of the holding. Nothing further need be said on this part of the case.

The main contention of the defendants was that by the sale of the proprietary right of the land covered by the holding the plaintiff ceased to be the landlord of that portion of the village and rent was not due to him, but to the defendants 1 and 2 and was paid to them. They contended that in spite of the fact that the plaintiff alone was recorded for the entire 16 annas of this estate he was not entitled to get a decree in respect of the rent of the holding in question. This was overruled by the learned trial Court on the ground that Section 60, Ben. Ten. Act, precludes defendant 3 from raising this plea.

The learned Subordinate Judge however has reversed that decision and has dismissed the suit. The plaintiff has preferred this appeal. The main question involved in this appeal is as I have said, whether the plaintiff on the strength of his being a registered proprietor for the entire estate can realize rent of this holding in spite of the fact that his proprietary interest in respect of the land of this holding was sold in execution of a decree, in other words, whether defendant 3, the tenant of the land, can be permitted to raise the plea that rent was due not to the plaintiff but to defendants 1 and 2. The names of defendants 1 and 2 are admittedly not registered in the Land Registration Department.

The reasoning of the learned lower appellate Court for reversing the decision of the trial Court is not very clear to me, but I shall try to follow it. The learned Subordinate Judge is of opinion that Section 60, Ben. Ten. Act, should be read along with Sections 78 and 79, Land Registration Act, and then he holds that if the interest which defendants 1 and 2 claim to have acquired is such that they are not under the Land Registration Act required to have their names registered, the disability mentioned in Section 78 of the Act does not apply to them and consequently the plaintiff cannot claim the privilege of Section 79 of the Act; and Section 60, Ben. Ten. Act, does not preclude defendant 3 from pleading that rent is due to defendants 1 and 2. One may agree with him so far. But he proceeds to hold that defendants 1 and 2 who have purchased the proprietary right in the holding in, question do not hold any share or interest in the estate and therefore they are not required by Section 38, Land Registration Act, to have their names registered. This premises of his that defendants 1 and 2 are not required to have their names registered in the Land Registration Department is in my opinion wrong and therefore his conclusions are wrong. He refers to the definitions of "proprietor" and "estate" in the Land Registration Act and says that the land purchased by the predecessors of defendants 1 and 2 no doubt forms a part of the revenue paying land entered on the revenue roll of the Collector but no separate engagement has been entered into with them for payment of the land revenue for it nor is it separately assessed with land revenue and

therefore defendants 1 and 2 cannot be regarded as being in possession of the estate, or of any interest in the estate as owner thereof. It follows that they cannot be regarded as joint proprietors of the estate along with the plaintiff. Defendants 2 and 3(1 and 2) cannot be regarded to be in possession of ''any extent of interest'' in the estate.

The error is obvious. According to the definition of "estate" in the Land Registration Act, a separate engagement for payment of revenue is only necessary to make the land an estate, but no separate engagement can be for an interest in the estate. A proprietor of an interest in an estate is not the same as a proprietor in an estate, and an estate is not the same thing as an interest in the estate. Interest in an estate is something less than an estate. Then he proceeds further and says:

The expression ''extent of interest'' has been defined in Sub-section 3, Section 3 of the Act as meaning the share or interest in an estate or revenue free property of which the person with respect to whom the words are used is in possession as proprietor or manager.

Further on he says:

The mere purchase of a parcel of land from the proprietor within an estate cannot amount to the transferee holding any ''extent of interest'' in the estate within the meaning of the expression as defined in the Act. The possession of the purchaser of such parcel of land within the estate, until the extent of his interest is defined, is similar to that of a tenure-holder.

He is under the impression that "interest in an estate" referred to in the Land Registration Act, means an interest which can be represented as a definite fraction of the entire estate.

In other words, according to him if a man holds as a proprietor 50 acres of land in an estate of 51 acres, he holds no interest in the estate within the meaning of the Act as long as these 50 acres cannot be expressed in the form of some fraction of the estate. This interpretation is not supported by anything in the Land Registration Act. Supposing, for instance, an estate is made up of several well defined villages and the proprietor thereof sells one of such villages to another person.

It is obvious that the purchaser has got an interest in the estate by this transfer, though he does not hold a definite fractional share of the entire estate. Similarly one may conceive a case in which an estate consists of 100 acres of land and the proprietor thereof transfers 99 acres. The transferee holds an interest in the estate and his interest amounts to 99 acres out of 100 acres of the estate, though this interest cannot be specified as being a particular fraction of the estate. A man may be a proprietor of an interest in an estate if he is the proprietor of a fractional share of the entire estate or if he is the proprietor of a definite piece of land within that estate. The provision for the registration of names of proprietors of an interest in an estate is not confined to those who are proprietors of such an interest which can be specified in a definite fraction.

This will be clear if we refer to Sections 10 and 11, Revenue Sale Act 11 of 1859 read along with Sections 69 and 70, Land Registration Act. Sections 10 and 11, Revenue Sale Law Act 11 of 1859 authorise the opening of a separate account of revenue for an interest in the estate. Section 10, Revenue Sale Act, gives this right to the recorded sharer of a joint estate where his share (interest) is a fraction of an entire estate. Section 11 gives the same right to the recorded share of an estate whose share consists of a separate portion of the land of the estate (as in the case here) and Section 70, Land Registration Act, makes good the deficiency of the Revenue Sale Act by providing for the opening of a separate account for those proprietors whose interest in the estate is neither a share in the entire estate (provided for in Section 10, Revenue Sale Act) nor a separate portion of the land of the estate (Section 11 of the Act), but a share in this separate portion of land. Section 69, Land Registration Act clearly says that the right given by Sections 10 and 11, Revenue Sale Act can only be exercised by those proprietors whose names are registered under the Land Registration Act and thereby contemplates the registration of the names of those whose interest is confined to a separate portion of the land of the estate. I am unable to under. stand how the learned Subordinate Judge held that a purchaser of a parcel of land in an estate is a tenure-holder. u/s 5(1), Ben. Ten. Act, "tenure-holder" means

primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it, etc.

It is obvious that the right which defendants 1 and 2 claim to have acquired tinder the purchase in execution of the decree is not of such a nature as to bring them within the definition of "tenure-holder." A tenure-holder is a person who holds under a proprietor and but for a contract to the contrary is liable to pay rent to him. Here the status of defendants 1 and 2 according to their allegation in respect of the land covered by the holding is on equal level with the interest of the plaintiff in respect of other lands of the estate. The position is that in this estate certain land is alleged to be the exclusive property of defendants 1 and 2 and the rest of the land is the property of the plaintiff.

Their interests are co-ordinate. Defendants 1 and 2 are not in any way subordinate to or under the plaintiff. I do not think this position can be disputed and in fact has not been disputed by the learned advocates appearing on behalf of the respondents. In my opinion, the position claimed by defendants 1 and 2 is that of a proprietor of the land of this holding and their interests is that of a proprietor within the meaning of the Land Registration Act and Section 11 Revenue Sale Act.

Mr. Rai, T.N. Sahay and Mr. C.P. Sinha, appearing on behalf of the respondents have however tried to support the decree of the learned Subordinate Judge on grounds of their own and have urged two points in this connexion.

One is that though under the Land Registration Act defendants 1 and 2 were bound to have their names recorded it was impossible for them to do so in view of the fact that the registers maintained by the collectorate, a form of which has been given at p. 89, etc., of the Land Registration Manual, do not authorise the registration of names in respect of specific parcels of land which is less than a village.

The registers only provide for the registration of names in respect of estate and village and their fractional shares. As defendants 1 and 2 do not hold a particular fraction of the estate they cannot get their names registered in any of the existing registers provided by the Board of Revenue for the purposes of the Land Registration Act. I am unable to uphold this contention. First of all, there is nothing to show that defendants 1 and 2 made any attempts to have their names registered in respect of the land which they purchased and that they were unsuccessful on account of the absence of an appropriate register where there names could be recorded.

The state of the law being what I have stated, the authorities must have made some provision of carrying it out. Secondly, even if there is no register in which specific lands less than a village or estate can be recorded, defendants 1 and 2 could have got their names recorded by asking the Collector to specify their interest in a fraction of the estate.

After all they claim to hold a fraction of the estate though what the fraction is has not been ascertained. It is also open to them to get this fact established either before the Collector or in a proper suit. The assets of the entire estate, for instance is say Rs. 100 and the assets of the land claimed to have been purchased by defendants 1 and 2 is say Rs. 25, it means that they hold one-fourth of the estate, and this one-fourth share does not extend over the entire estate but is restricted to a particular parcel of land.

The law is clear that u/s 38 they are enjoined to have their names recorded and the disability imposed by Section 78, Registration Act, debarring them from instituting a rent suit for the land applies to them, and the plaintiff being recorded for the entire estate has the privilege of Section 79 of the Act. Now I proceed to consider how far Section 60, Ben. Ten, Act, estops the tenant, defendant 3, from raising the plea that rent is due not to the plaintiff but to defendants 1 and 2. The learned Subordinate Judge has relied upon the case of Girish Chandra v. Satish Chandra (1908) 12 CWN 622 to the effect that if the recorded proprietor''s title to land has been held by a properly constituted Court to be void and of no effect, Section 60 does not debar the tenant from raising the plea that the rent is not due to him. First of all this is not the case here, and then the correctness of this decision has been doubted by the two learned Judges of this Court in the case of Har Dayal Mahton v. Wazir Mahton AIR 1917 Pat 582 and an exactly contrary view was taken in the case of Mt. Nand Kuer v. Jodhan Mahton AIR 1921 Pat 863.

In the latter case, though their Lordships did not expressly dissent from it, they contented themselves by saying that it might be justified in certain conditions. With all respect to the learned Judges of the Calcutta High Court who decided the case of Girish Chandra (1908) 12 CWN 622 I am bound to follow the clear decision of this Court in the case of Mt. Nand Kuer AIR 1921 Pat 863 which, in my opinion, is in conformity with the imperative provisions of Section 60 Ben. Ten. Act. The decision is to the effect that a person registered as proprietor under the Bengal Land Registration Act, 1876 is entitled to recover rent from the tenants without any further proof of his title to it and the tenants are not entitled to plead that the registered proprietor is not in fact the proprietor and that the rent is due to a third person.

I am unable to distinguish this case from the present one. Here the plaintiff is registered in respect of the entire estate within which the land in question is situated.

He is entitled to recover rent without any further proof of his title and the tenant is not entitled to plead that the rent is due to a third person. The plaintiff might have lost his title to the land and it may be with defendants 1 and 2, but defendant 3 is bound to pay rent to the plaintiff under the combined effect of Sections 78 and 79, Land Registration Act, and Section 60, Ben. Ten. Act. Section 60, Ben. Ten. Act, has been enacted to avoid as far as it is practicable the conversion of a simple rent suit into a complicated title suit.

It was however contended that Section 60 has no application to this case. It only applies when the rent is due to the proprietor, etc., and the plaintiff having lost his right in the land in question is no longer a proprietor and therefore the rent is not due to him and the tenant is entitled to say that the plaintiff is not his landlord and to call upon him to prove the relationship of landlord and tenant. The plaintiff not having proved this the suit has been rightly dismissed.

To accept this contention will be in my opinion repealing Section 60, Ben. Ten. Act. I can conceive of no suit by a registered proprietor in which in spite of the prohibition of Section 60 the tenant will not be precluded from raising the plea that the rent is due to a third person, because in every case when a tenant pleads that rent is due to a third person he does plead that the plaintiff is not his landlord. In my opinion the learned Subordinate Judge''s decision so far as it relates to claim for rent is wrong and cannot be upheld. The next question is about the claim for enhancement of rent, which was decreed by the trial Court at the rate of four annas per rupee, but the learned Subordinate Judge having dismissed the suit on the ground that the plaintiff had no title to the land has not considered the question of enhancement at all.

Now ordinarily in a suit instituted by a landlord against a tenant the tenant is entitled to deny the relationship of landlord and tenant between him and the plaintiff and can question the title of the plaintiff. This right of the tenant has been in respect of suits for rent by a registered proprietor, taken away by Section 60 Ben. Ten. Act. The restriction is. confined to suits for rent when it is due to the proprietor. I have very grave doubts whether this restriction will apply to a suit for enhancement of rent; I do not however, wish to examine the question in detail as the plaintiff wishes to abandon his claim for enhancement of rent in the present suit.

This abandonment is allowed, but without permission to institute a fresh suit on the same cause of action. I therefore allow the appeals, set aside the decree of the learned lower appellate Court and restore that of the trial Court so far as it relates to the arrears of rent. This decision, however, will not affect the question of title between the plaintiff on the one hand and defendants 1 and 2 on the other which is left undecided. Whether or not defendants 1 and 2 acquired a valid title by their purchase under which they claimed will be settled in a proper way by a proper Court.

The claim for enhancement of rent stands abandoned. Taking the circumstances of the case into consideration I direct that the parties do bear their own costs throughout.