Parbha Narayan Singh vs Ramadhar Pande and Others

Courtney-Terrell, C.J.—The plaintiff is 16 annas proprietor of village Naraon. The father of defendants 4 and 5 held from him 51 bighas 15 Cottahs on kaimi. The holding consisted of 2 kathas Nos. 25 and 417. At the time of making the Record-of-Eights these were held on a produce rental but this was later commuted for money rent and the holdings were amalgamated.

In 1917 the rent for the years 1915, 1916 and 1917 was in arrears and the plaintiff obtained a decree for rent against defendants 4 and 5 who had succeeded to the holdings. The rent suit was begun on 4th September 1917 and the decree was pronounced on 14th August 1918. The holding was sold, and purchased by the plaintiff on 10th May 1920. The judgment-debtors applied in December 1920 to set aside the sale but on 30th June 1921 the proceedings were compromised and the sale was confirmed and on 22nd September 1921 the plaintiff got possession. The plaintiff became aware that on 12th June 1919 defendants 4 and 5 had executed a usufructuary mortgage to defendants 1 and 2 to take effect with possession from 11th September 1921, On 16fch December 192 1 he applied u/s 167, Bengal Tenancy Act, to set aside the mortgage stating that he had become aware of it during the sale proceedings. The mortgage was annulled on 10th March 1923. On 24th January 1923 the plaintiff settled 41 bighas 15 cottahs with defendant 3 who entered into possession in the following June in which month the plaintiff re-settled the remaining 10 bighas with defendants 4 and 5. In this suit the plaintiff seeks to recover from defendants 1 and 2 mesne profits treating them as trespassers on the land from the date of his purchase in May 1920.

Defendants 1 and 2 argue firstly that the proceedings u/s 167, Bengal Tenancy Act, to set aside the mortgage were invalid having been begun on 16th December 1921, more than one year from (the date of the sale on 10th May 1920. En my opinion the answer to this contention is found in the decisions now well established that the date of Confirmation i.e., 30th June 1921 and not the date of actual sale is to be looked to: see inter alia Nanda Lal v. Umesh Chandra [1918] 45 Cal. 151.

But there is a further point which is, in my opinion, conclusive in favour of the plaintiff although it was not taken in either of the lower Courts. The purchaser under the rent decree was the landlord himself, and the mortgage being of a non-transferable holding, in the absence of proof of a custom to the contrary and in the absence of consent on the part of the landlord the mortgage was invalid as against him even if no proceedings u/s 167 had been taken. This was clearly laid down by this Court in Badlu Pathak and Others Vs. Sibram Singh and Others, and the decision in Sourendra Mohan Singh and Others Vs. Kunjbihari Lal Mander and Others, . is also in point. The defendants'' advocate attempted to distinguish the facts of this case from those the subject of the reported decision on the ground that here there was a -transfer by mortgage of a portion only of the holding and that therefore there had been no abandonment of the holding within Section 87, Bengal Tenancy Act. He referred in support of this argument to the judgment in Dayamayi v. Ananda Mohan Ray [1915] 42 Cal. 172. There is no finding of fact to support this argument; it was not raised in the lower Courts, and throughout the case the-lower Courts have treated the mortgage-as having been in respect of the entire holding of defendants 4 and 5 and in any I event a landlord purchaser is in my opinion entitled to ignore the mortgagee of a non-transferable holding whether the mortgage is in respect of the wholes or a part.

The plaintiff is thus entitled to a decree for mesne profits from 10th May 19201 the date of the sale, defendants 4 and 5 having been trespassers since then. The appeal should be allowed and the decisions. of the Courts below should be-reversed and the plaintiff is entitled to-his costs against defendants 1 and 2; throughout.

Jwala Prasad, J.

I agree.