Mt. Bibi Safia and Another vs Yusuf Md. Muzaffar and Others

Shearer, J.—This appeal arises out of a decree of the learned Subordinate Judge of Patna, dismissing a suit to recover arrears of mukarrari rent.

There were two plaintiffs in the suit, Bibi Sayeedunnisa and her daughter Bibi Safia, and the circumstances out of which the appeal arises are somewhat exceptional. It is admitted that Bibi Sayeedunnissa was a cosharer landlord of the estate in which the mukarrari tenure is situated, and throughout the period from 1343 Fasli up to 15th pus, 1346 Fasli, her name was recorded in register D. In 1989 her daughter, Bibi Safia, instituted a suit to recover arrears of rent due in respect of the mukarrari tenure for the period from 1848 to 1346 Fasli. In this suit, in which Bibi Sayeedunnisa did not join as a plaintiff, Bibi Safia asserted that, at the time of her marriage, which took place at the end of 1342 Fasli or at the beginning of 1348 Fasli, her mother had made an oral gift to her of her proprietary rights. Bibi Safia had delayed in taking steps to have her name entered in register D. Her name was not entered there until 2lst December 1938, and the learned Subordinate Judge who tried the suit gave her a decree for arrears of rent which accrued due after that date. So far as the claim for the antecedent period, that is, the period prior to 15th of Pus, 1346, was concerned, the learned Subordinate Judge dismissed the suit on the ground that he was not satisfied that there had been any oral gift or, at all events, that that oral gift had been made at the end of 1342 Falsi. Bibi Sayeedunnissa and Bibi Safia then instituted the suit out of which this appeal arises, in which they sought to recover rent for the period from 1343 Fasli up to 15th of Pus, 1346 Fasli, and again for the period from 1837 Fasli to 1349 Fasli. Subsequently, the two ladies appear to have been advised that the suit might fail for misjoinder of plaintiffs and misjoinder of causes of action and so Bibi Safia later instituted another suit to recover arrears of rent for the period from 1347 to 1849 Fasli. This suit was decreed and the claim made for that period in the suit out of which this appeal arises was, therefore, disallowed. Thus, we are not concerned solely with the claim made for the period from 1348 Fasli up to the 15th Pus 1346 Fasli.

It is quite clear that Bibi Safia, plaintiff 1, was not entitled to maintain another suit in respect of the period from 1346 Fasli up to the 15th Pus, 1346 Fasli, her claim to rent for that period having been disallowed in the prior suit. It is, perhaps, unfortunate that plaintiff 2, Bibi Sayeedunnissa, did not institute a separate bait in respect of this period. If she had done so, and had not joined her daughter in that suit as a co-plaintiff, she would certainly have been given a decree. It was still more unfortunate that in para. 2 of the plaint the following averment was made:

By means of a verbal gilt plaintifi 2 made over the said property to plaintiff 1 from 1343 Fasli. Plaintiff 1 instituted Bent Suit No. 3 of 1939 in the second Court of Sub-Judge at Patna. But since the name of plaintiff 1 was not recorded before 22-12-1938, the Court did not pass a decree for the period from 1343 Fasli to 15th Pus, 1346 Fasli, on this ground that the title of plaintiff 2 was intact during the aforesaid years. Hence it is necessary for both the plaintiffs to institute this suit.

In the relief portion of the plaint the Court was asked to pass a decree for the period from 1843 Fasli up to 15th Pus 1846 Fasli in favour of plaintiff 1 or plaintiff 2 whoever may be deemed entitled to by the Court. The learned Subordinate Judge regarded the averment in the plaint, which I have just set out, as amounting to an admission that plaintiff 2 had no cause of action, and on this ground disallowed the claim. It seems to me, however, that in effect what the plaintiff 2 there said was:

I believe that in 1343 Fasli I did what was necessary to divest myself of my proprietary rights and to Test these proprietary rights in my daughter, but a court of competent jurisdiction has come to the conclusion that this was not so, and, therefore, I am entitled to maintain this suit.

It is, I think, not very material that in the relief portion of the plaint she and her daughter invited the Court to reopen a matter which, it is plain, had been left in a good deal of doubt by the judgment in the earlier suit and decide when exactly the proprietary right had passed from the one of them to the other. At one time it was, no doubt, incumbent on a plaintiff in a rent suit to show not merely that he was the recorded proprietor but also that the relationship of landlord and tenant existed between the defendant and himself or that he had a good title to the estate of which he was the registered owner: Ramkristo Dass v. Shaikh Harain (1983) 9 Cal. 517. When, however, Section 60 of the Bengal Tenancy Act was enacted, the legislature took a further step forward and debarred a defendant in a rent suit from pleading that the plaintiff, if he was a registered proprietor, was not in fact it he true owner and rent was not due to him but to someone else: Sadhu Charan Pal v. Radhika Mohan Roy 8 C.W.N. 695. It is now well settled that a person who is a registered proprietor is entitled to recover rent even if he has conveyed his title to a third person. In fact, it has been doubted whether a Court is entitled to dismiss his suit even when there has been litigation between himself and some third person and a Court of competent jurisdiction has decided that not he but that third person is the true owner: Hardayal Mahton v. Wazir Mahton AIR 1987 Pat. 532. There is nothing to prevent a person who has taken a conveyance of a proprietary interest in an estate, and who has, for some reason or other, not taken steps to have his name entered in register D, from coming to an arrangement with his vendor, under which the latter will institute suits to recover arrears of rent due by tenants and will pay over to him any sums which he may recover. The object of the legislature in enacting Section 78, Land Registration Act, was to coerce owners of estates into registering themselves as owners, and the object of the legislature in enacting Section 60, Bengal Tenancy Act, was to afford protection to tenants who paid rent to persons so registered, although they might have ceased to be the true owners. It cannot have been intended that tenants should find in these provisions a loophole enabling them to escape all liability for the payment of rent. In my opinion, the averment in the plaint ought not to be, and cannot properly be, construed as an admission that plaintiff 2 had no cause of action, and in any case, even if it could, I doubt whether the defendants are any more entitled to take advantage of it than they were entitled to adduce evidence to show that plaintiff 2 had parted with her proprietary interest at the end of 1342 Fasli. The suit was instituted on 28-9-1942, which Was exactly three years from the last day of the Fasli year 1346. The plaintiff 2 was, therefore, entitled to a decree for the rent which fell due at the Kartik kist, 1346 Fasli, together with interest and proportionate costs. If the period of limitation which is applicable to the suit is that prescribed in the schedule to the Bihar Tenancy Act, the claim for the period from 1348 to 1345 Fasli is barred by limitation. It is, however, contended that the period of limitation which applied is that prescribed by Article 116, Limitation Act. The kabuliat which was executed by the predecessors in interest of the defendants was, it should be said, a registered kabuliat. On behalf of the appellants it is urged that the lease was not an agricultural lease but a lease to which the provisions contained in the T.P. Act are applicable. For this pro-position, reliance was placed on the recent Full Bench decision of this Court: Maheshwari Prasad v. Manrajokuer AIR 1944 Pat. 87 What the learned Judges there had to consider was not, however, a mukarrari lease bat an ordinary thika or farming lease. The ratio decidendi was that a thikadar, or a farmer, was not a tenure holder in that such a lease does not contemplate holding of any land by the lessee. Developing this point Fazl Ali, C.J. said:

A person is not a tenure-holder under the Bengal Tenancy Act unle3a he is a tenant as defined in the Act and he is not a tenant unless he holds land for agricultural purposes.

Our attention was invited to an observation by Mahohar Lall J., who after referring to Section 179(a), Bihar Tenancy Act, said:

Now a permanent mukarridar may also be called a tenure-holder in the loose sense of the word, but the legislature is not out to protect such a person because he becomes practically in the position of a proprietor and so a permanent mukarrari lease is kept outside the provisions of the Bihar Tenanoy Act.

This observation was, however, in the nature of an obiter dictum,. Later in his judgment the same learned Judge, who concurred in the opinion expressed by Fazli Ali, C.J. and Chatterji J., said:

I would repeat that it is the purpose or dominant purpose of the settlement that would decide the question whether the Transfer of Property Act or the Bihar Tenancy Act applies.

Now, from what is contained in the kabuliat which was executed by the ancestors of the defendants, it would seem that they were very sub-stantial cultivator; owning a great deal of land in this village. Their occupancy holding, or occupancy holdings, had been sold in execution of rent decrees, and this had led to litigation which had been carried to their Lordships of the Judicial Committee. This litigation was compromised, one of the terms of the compromise being that the ancestors of the defendants should take this mukarrari lease of the village. The kabuliat contains elaborate provisions imposing on the executants an obligation to maintain intact the irrigation system. It also contains the following clause which is, I think, of some significance:

The expenses relating to earth-work, sch-bandi, construction of house, cultivation of village, and construction of culvert and brick-built and mud build wells and other village expenses shall be the concern of me, the declaring.

It is, in my opinion, quite dear from all this that, although the original mukarraridars were to collect rent from such other occupancy raiyats besides themselves as there had been in the village, they were also to cultivate much'' of the land in the village themselves. The learned Subordinate Judge was, therefore, in my opinion, correct in holding that the defendants were tenure-holders and that the provisions of the Bihar Tenancy Act and not of the T.P. Act were applicable. As far back as 1891 a Full Bench of the Calcutta High Court decided that suits for rent founded on registered contracts in respect of land subject to the provisions of the Bengal Tenancy Act are governed by the limitation provided in that Act: Mackenzie v. Mahomed Ali Khan (1990) 19 Cal. 1. The judgment is a very brief one, and it may, I think, be presumed that the learned Judges who were parties to it endorsed the reasoning of Trevelyanand Beverley JJ. in the earlier decision in Iswari Pershad Narain Sahi v. Chowdy (1990) 17 Cal. 469, It was there pointed out that, if Article 116, Limitation Act was to apply when there was a registered lease, not only would the period of limitation be different but also the starting point at which limitation began to run would be different. This, it was said, was "a result which we think the Legislature never intended." Biswas J. of the Calcutta High Court in Munshi Alauddin Ahammed Choudhury and Others Vs. Tomizuddin Ahammed, has recently expressed the opinion that the decision in Mackenzie v. Mahomed Ali Khan (1992) 19 cal. 1 now requires reconsideration. On this point, however, Henderson J. who was a party to the decision in which he made this observation, refrained from expressing any opinion. Biswas J. in expressing the opinion which he did was mainly influenced by the decision of their Lordships of the Judicial Committee in Tricomdas Cooverji v. Gopinath Jiu Thakur AIR 1916 P.C. 182. That was a case in which the lease was not governed by the Bengal Tenancy Act but by the Transfer of Property Act, and the question that arose was whether Article 110 or Article 116, Limitation Act applied. Their Lordships of the Judicial Committee took the view that, while a suit to recover arrears of rent due under a registered lease would come, more naturally perhaps, under Article 110, it was scarcely possible to say that Article 116 could not apply. They went on to point out that, except in one case decided in 1903 by a Judge of the Allahabad High Court sitting Bingly, the view uniformly taken by the Courts in India had been that Article 116 was the article which prescribed the period of limitation in such cases. Mainly, therefore, on the principle stare decisis they endorsed the view which had for so long been taken by the Courts in this country. Tricomdas Coverji v. Gopinath Jiu Thakur AIR 1916 P.C. 182 was decided in 1916, and, as Section 29, Limitation Act then stood, no doubt could have been created by it as to the correctness of the Pull Bench decision of the Calcutta High Court. The section then stated:

(1) Nothing in this Act shall

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(b) affect or alter any period of limitation specially prescribed for any suit, appeal or application by any special or local law now or hereafter in force in British India.

In 1922, however, Section 29, Limitation Act, was amended. Sub-section (2) of Section 29 now provides:

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed there for by Schedule 1, the provisions of Section 3 shall apply, as if such period were prescribed therefore in that schedule.

In view of this, it may, perhaps, be contended that in a suit for arrears of rent Article 110 applies, the period of limitation shown in it being, however, the period of limitation prescribed by the Bihar Tenancy Act where the Bihar Tenancy Act applies to the tenure. It does not, however, by any means follow, in my opinion, that, where there is a registered lease, the article applicable will be Article 116 and not Article 110 as modified in the manner just indicated. Indeed, one of the grounds on which their Lordships of the Judicial Committee based their decision in Tricomdas Cooverji v. Gopinath Jiu Thakur AIR 1916 P.C. 182, namely, the undesirability of upsetting a long current of decisions, would justify the view that Article 116 should be held to be inapplicable. For these reasons, the decision of the learned Subordinate Judge on the point of limitation was, in my opinion, correct. As I have already said, plaintiff 2 is entitled to a decree for rent for the Kartik kistc of 1346 Fasli and to interest on the amount so due, I would allow the appeal and decree the suit accordingly. Plaintiff 2 is also entitled to costs in proportion to the extent of her success in this Court and in the Court below.

Reuben J.

I agree and would add a few words on the point of limitation. Biswas J. in Munshi Alauddin Ahammed Choudhury and Others Vs. Tomizuddin Ahammed, referring to the case in Tricomdas Cooverrji v. Gopinath Jiu Thakur AIR 1916 P.C. 182 says:

Applying the line of reasoning accepted by the Judicial Committee in the interpretation of the relevant Articles, it may be well doubted why, if Article 110 does not affect Article 116, Limitation Act, Article 116 will be at all affected by the special provision of Article 2 of Schedule. 3, Ben. Ten. Act. By virtue of Sections 184 and 185, Ben. Ten. Act, Article 2 of Schedule. 3 of this Act may be said to take the place of Article 110, Limitation Act, and Article 116, Limitation Act, may be deemed to be incorporated in the Bengal Tenancy Act. If Article 110 is then superseded by Article 116, Limitation Act, there seems to be no valid reason why Article 116, should not similarly supersede Art, 2 of Section 3, Ben. Ten. Act.

The relevant provisions of the Bihar Tenancy Act are similar to those of the Bengal Tenancy Act. I would respectfully suggest that the answer to the query of Biswas J. is to be found in Sub-section (2) of Section 185, Bihar Tenancy Act:

Subject to the provisions of this Chapter, the provisions of the Indian Limitation Act, 1877, shall apply to all suits, appeals and applications mentioned in the last were going section.

There is a corresponding provision in Section 185, Ben. Ten. Act. The application of Article 116, Limitation Act, therefore, is subject to the provisions of the Bengal Tenancy Act on the subject of limitation. u/s 184 of the Act, suits specified in schedule 3 of the Act "shall be instituted within the time prescribed in that schedule for them." Hence the period of limitation prescribed in Schedule 8 for a suit for the recovery of arrears of rent will apply in this case and will exclude the period of limitation under Article 116, Limitation Act.