Niladri Mahanti vs Bichitranand Roy

Lawrence H. Jenkins, C.J.—This appeal arises out of a suit brought by the plaintiffs to recover possession of certain land which they claim

to be their under-tenure. The Munsif passed a decree in the plaintiff''s favour. This was reversed by the lower Appellate Court; and, on appeal to

this Court, Mr. Justice Brett has confirmed the decree of the lower Appellate Court. The present appeal is from Mr. Justice Brett''s judgment u/s

15 of the Letters Patent.

The facts which have given rise to this suit can be briefly stated. The plaintiffs, on the 14th October 1901, purchased the land in suit from

defendant No. 9, who himself purchased the under-tenure, of which this land forms part, on the 15th of December 1900 at a sale held in execution

of a money-decree passed against defendant No. 1 and the father of defendant No. 2. On the 28th of January 1902, the under-tenure was again

put up to sale in execution of a decree against defendants Nos. 1 and 2 obtained by defendants Nos. 4 to 8, who were sharers in the estate to the

extent of 8 annas, and claimed in the suit their share of the rent. At that sale defendant No. 3 purchased, and on the 17th of July 1902 he took

possession of the property, and thereby, it is said, dispossessed the plaintiffs and their vendor, defendant No. 9. The plaintiffs claim that defendant

No. 3 took nothing by his sale as against them, inasmuch as the decree was not a decree for rent, but was a decree for money due on account of a

share of the rent of the under-tenure.

The answer made on behalf of defendant No. 3 is that the plaintiffs cannot be heard to advance this contention because they have no locus

standi, whatever that may mean, inasmuch as the transfer to their vendor as well as to themselves has not been registered in the manner

contemplated by Section 27 of Act X of 185.9. This view has found favour with the lower Appellate Court and with Mr. Justice Brett. The

question is whether it can be sustained.

Now, it is to be noticed that the sale to defendant No. 3 was not u/s 105 of Act X of 1859, but u/s 108, and the distinction is vital. Thus,

Section 105 contemplates a decree for an arrear of rent due in respect of an under-tenure, and, further, it contemplates that it should be a decree

by the landlord, or the whole body of landlords, for the entire rent. The consequence of such a decree is that what is brought to sale is ""the

tenure..., according to the rules for the sale of under-tenures for the recovery of arrears of rent due in respect thereof,"" an expression which was

held by the Privy Council in Brindabun Chunder Sircar Chowdhry v. Brindabun Chunder Dey Chowdhry (1874) 13 B.L.R. 408: L.R. 1 IndAp

178 to refer to the rules contained in Regulation VIII of 1819 and I of 1820 when Act X of 1859 was passed. Since 1865 these sales have been

regulated by Act VIII of 1865 (B. C). Turning on the other hand to Section 108, what is there contemplated is not a decree for an arrear of rent,

but a decree for money due on account of a share of rent, and not a suit brought by the landlord or the whole body of landlords, but by a sharer in

a joint undivided estate, and it is from the failure to observe the distinction between Section 105 and the clauses which are its proper sequel on the

one hand, and Section 108 and those that amplify it on the other, that the difficulty in this case has arisen. The sale on which defendant No. 3 in this

case relies was in execution of a decree u/s 108, and it is necessary to see what precisely Act X of 1859 provides in relation to such a decree and

its execution. It provides that the under-tenure may be brought to sale in execution of the decree in the same manner as any other Immovable

property may be sold in execution of a decree for money under the provisions of Sections 109 and 110. Section 109 imposes conditions

precedent to the right of the decree-holder to apply for execution against any Immovable property belonging to the debtor. We have no concern

with those conditions in this case, because no point has been made with reference to this matter in the lower Courts. Section 110 provides that if,

as is the case here, the property be a saleable under-tenure, it shall be sold under the provisions of law for the time being in force applicable to the

sale of such under-tenures for demands other than those of arrears of rent due in respect thereof. When Act X of 1859 came into operation, the

law for the time being in force was Act VIII of 1859 which, in Section 259, provided that, ""after a sale of Immovable property shall have become

absolute in the manner aforesaid, the Court shall grant a certificate to the person who may have been declared the purchaser at such sale, to the

effect that he has pur chased the right, title and interest of the defendant in the property sold, and such certificate shall be taken and deemed to be a

valid transfer of such right, title and interest."" That section is clearly one of those which would certainly be part of the law for the time being in force

applicable to the sales of under-tenures for demands other than those of arrears of rent, so that this section indicates what would at that time have

passed to a purchaser in the case of a sale in execution of a decree for money due on account of a share of rent. The distinction, therefore,

between that which passes on a sale on a decree u/s 105, and that on a decree u/s 108, is manifest. The matter is brought out with clearness by

their Lordships of the Privy Council in (1878) L.R. 6 I.A. 47 (Privy Council) , where it said--""Now it is clear that in attaching the property of a

judgment-debtor, whether in an under-tenure or in an ordinary leasehold interest, under Act VIII of 1859, you can only attach and sell the right,

title and interest of the judgment-debtor; but if you proceed to sell a tenure u/s 59 of Act VIII of 1869, then you sell the tenure; and by virtue of

Section 66 of the same Act, the purchaser, under the provisions of Sections 59 and 60 of the Act, acquires it free of all incumbrances which may

have accrued thereon by any act of any holder of the said under-tenure, his representatives or assignees, unless the right of making such

incumbrances shall have been expressly vested in the holder by the written engagement."" So that it may, I think, fairly be said that while u/s 105,

which is the equivalent of Section 59 of Act VIII of 1869, the tenure would be sold u/s 108, it is only the right, title, and, interest of the judgment-

debtor in the under-tenure that would pass. That is how the matter stood in 1859; but ever since then it has been the accepted doctrine that all that

a purchaser would take at a sale in execution under the several successive Codes of Civil Procedure would be the right, title and interest of the

judgment-debtor. The same view receives the sanction of the Full Bench in Shamchand Kundu v. Brojonath Pal Chowdhry (1873) 12 B.L.R. 484:

21 W.R. 94. I refer in particular to the remarks made by Mr. Justice Jackson in the course of his judgment. If, then, the matter stood there, we

should have this position, that all that defendant No. 3, the purchaser at the subsequent execution sale, would get would be the right, title and

interest of the judgment-debtor at that time; in other words, he would get nothing so far as the land in suit is concerned, because, before that

execution purchase, the property had passed successively to defendant No. 9 and the present plaintiffs.

It is next said that the plaintiffs cannot rely on the title so acquired, or, as it has been expressed, that he has not got a locus standi. I view the

expression locus standi with some apprehension, because I do not pretend to know what it precisely means in this connection. Does it mean that

defendant No. 9 and the plaintiffs acquired no title because there was no registration? If that be the contention, then there is a complete answer to

this view in the decision of Mr. Justice Wilson and Mr. Justice Beverley in Kristo Chunder Ghose v. Raj Kristo Bandyopadhya ILR (1885) WB.

24, and of the Privy Council in Luckhinarain Mitter v. Khettro Pal Singh Roy (1873) 13 B.L.R. 146, 156, 20 W.R. 380, where, in regard to the

effect of similar provisions in Regulation VIII of 1819 for registration of transfer of tenures in the zemindar''s sherista, their Lordships say--""The

plaintiffs were assignees of the darpatni talook, and though the transfer was not registered, they had the right and were compelled to deposit the

amount of rent due to the zemindar in order to protect their own interest."" If, on the other hand, it is meant that the plaintiffs have no right to sue,

then this contravenes the general principle that a man in possession of property lawfully acquired by him, but invaded by another, has a right to sue

in respect of trespass on it. Whether he will succeed or not is a different question; but the mere fact that he does not succeed does not mean that

he has no locus standi. I can understand its being said that a person has no locus standi where the Legislature in effect so provides, as, for instance,

in Section 106 of Act X of 1859, which is limited in its operation to sales u/s 105 of transferable tenures in execution of decrees for arrears of rent.

It is there provided that while third parties claiming to be the lawfull possessors of the under-tenure may apply for stay of sale and enquiry, no

transfer of the under-tenure, which by the provisions of the Act or any other law for the time being in force is required to be registered in the

sherista of the zemindar or superior tenant; should be recognized, unless it has been so registered, or unless sufficient cause for non-registration be

shown to the satisfaction of the Collector. This is a distinct provision of the law that, notwithstanding the title acquired by transfer, it shall not be

recognised for the particular purpose contemplated by that section. But the present suit is not one which comes within Section 106, and there is no

similar provision in relation to a sale u/s 108, so that the contention that the present plaintiffs have no locus standi is not one that can properly be

applied to the circumstances of this case. But it is contended that there are two decisions of this Court by which we are required to hold that the

plaintiffs have no locus standi. No doubt it was decided in Patit Shahu v. Hari Mahanti ILR (1900) WB. 789, that plaintiffs who had not registered

their names in the landlord''s sherista had no locus standi for the purposes of that suit. But the learned Judges based that proposition solely on the

case to which I have referred of Shamchand Kundu v. Brojonath Pal Chowdhry (1873) 12 B.L.R. 484; 21 W.R. 94, which was a case that

turned upon Section 105 of Act X of 1859, and not upon Section 108, and in which, as I have already remarked, the distinction between Sections

105 and 108, and the consequence of those sections, have been noticed by one of the learned Judges who was a party to the decision. What the

facts were which the Court in Patit Shahu''s case ILR (1900) WB., 789 accepted as facts for the basis of their decision is not clear, but, as far as I

can see, the learned Judges in that case did not base their decision on the view that the decree was obtained by one who was a co-sharer; and the

language of their judgment is equally consistent with their having supposed that the landlord on whose decree the sale was obtained was the sole

landlord. If he was regarded by them as the sole landlord, then the case is no authority for the position with which we have to deal. If they did not

so regard him, then it appears to me that they failed to observe the sharp distinction drawn by the(Legislature, as also the decision of Mr. Justice

Wilson, in the case of Kristo Chunder Ghose v. Raj Kristo Bandyopadhya ILR (1885) WB. 24 and of the Full Bench decision in Shamchand

Kundu v. Brojonath Pal Chowdhry (1873) 12 B.L.R. 484: 21 W.R. 94. The other case, to which our attention has been invited, is that of

Bichitrananda Roy v. Behari Lal Pandit (1906) 5 C.L.J. 89. That case proceeds upon the view that the plaintiff had no locus standi. I have already

explained my difficulties with regard to that proposition, and I cannot suppose for a moment that the learned Judges in that case intended to come

to a decision which was opposed to the view expressed by the Full Bench, or to the actual decision in Kristo Chunder Ghose v. Raj Kristo

Bandyopadhya ( ILR 1885) WB. 24. The fact is that the decision in Kristo Chunder Ghose''s case ILR (1885) WB. 24 is undistinguishable from

the present but for the fact that it proceeded upon Act VIII of 1869, whereas in this case we are concerned with Act X of 1859. But that is merely

a difference of name. The provisions of the law in the two cases are substantially the same, and there is no fair distinction that can be drawn for the

purposes with which we are now concerned, between the present case and that in Kristo Chunder Ghose v. Raj Kristo Bandyopadhya ILR

(1885) WB. 24.

The result, therefore, is that, holding as we must on the plain words of the Act, and also on authorities to which I have adverted, that the

plaintiffs acquired a title notwithstanding the absence'' of registration, and, further, that all that defendant No. 3 took was the right, title and interest

of the judgment-debtor, which at that date was nothing so far as concerns the property now in suit, it necessarily follows that the plaintiffs are

entitled to the relief they ask of possession as against defendant No. 3.

We must, therefore, set aside the judgment of Mr. Justice Brett and of the lower Appellate Court, and restore the decree of the Munsif with

costs throughout.