Raja P.C. Lal Chaudhury vs Gulzar Ali and Others

Courtney-Terrell, C.J.—These appeals arise out of three rent suits brought on 5th November 1927, by the proprietors of mahal Lat Mirzapur which includes mauza Pachaiwari Jhirua to recover the rent for the 12-annas kist of the year 1333, for the whole of 1334 and the first 8-annas kist of 1335. The tenants (defendants first party) set up various defences that, with which we are concerned being that the rent was payable by them as raiyats not to the landlord plaintiff but to a darpatnidar under a patnidar (Babu Maharaj Bahadur) who in turn held his patni tenure under the landlord by virtue of a patta of the year 1854 which gave no authority to the patnidar to create darpatni interests of the kind under consideration.

The patnidar was made defendant second party. It appears that in the year 1924 the plaintiff had sued the patnidar for arrears of his rent and in execution had put to sale and purchased the tenure in 1925. The sale was confirmed on 22nd April 1926, and after an unsuccessful appeal to the High Court, the landlord got delivery of possession on 7th May 1927. The patnidar, Maharaj Bahadur, had before the sale executed a darpatni to an intermediate tenure holder and on 5th July 1927, after he had ceased to be a patni. dar he purchased from the darpatnidar the darpatni interest and thus purported to have re-inserted himself between the landlord and the raiyat tenants.

The landlord on 28th June 1926, after the decision in his favour against the patnidar, had applied u/s 167, Ben. Ten. Act, to annul the tenures between himself and the raiyat-tenants, but the raiyats in the present suit contended and the Court below has held that the proceedings for annulment were void on the ground that they were not taken in time. The landlord however falls back on Section 11, Patni Regulation (8 of 1819), and contends that the darpatni interest was cancelled when he took the unequivocal step of applying for cancellation on 28th June 1926. At that time Maharaj Bahadur had no interest whatever for he had lost his patni tenure by sale in 1925 and he did not purport to acquire the darpatni interest which he had created while patnidar until his purchase from the darpatnidar on 5th July 1927 so that he was not a necessary party and required no notice of intention to cancel.

It was contended before us on behalf of the raiyat-defendants that having elected to take steps u/s 167, Ben. Ten. Act, to cancel the darpatni interest the plaintiff could not fall back on any rights under the Patni Regulation. This argument was raised in Durlav Chandra Chowdhuri and Others Vs. Jamiruddin Ahamed Chowdhuri and Others, and negatived. It was held in that case (p. 406 of 90 I.C.):

The Bengal Tenancy Act does not, in view of the provisions in Section 195(e), affect the rights of patnidars under the Patni Regulation and so the rights of the parties have to be determined under it. The plaintiff has doubtless in the present case based his cause of action on the Bengal Tenancy Act, but if his right to recover possession is found to exist under some other provision of law it would be sacrificing substance to form to deny him such right.

It is argued that proceedings under the Patni Regulation could not be taken for one year''s rent and that there was a difference between annulment under that enactment and annulment under the Bengal Tenancy Act. At the date of the Patni Regulation all proceedings against patnidars were governed by it. It is true that by the Rent Act of 1859 a further process was introduced for proceedings for rent and for annulment of inter, mediate tenures, but these were in addition to and not in substitution for the proceedings under the Patni Regulation in relation to patni tenures. The Bengal Tenancy Act again developed and expanded such proceeding and by Section 195, Ben. Ten. Act:

Nothing in this Act shall affect any enactment relating to patni tenures, in so far as it relates to those tenures.

The effect on a darpatni interest of a sale of the patni interest in execution of a decree for the rent payable by the patnidar has been the subject of discussion in many cases which were finally reviewed in the authoritative decision of Sir Lawrence Jenkins, C.J., in Krishna Promada Dassi v. Dwarka Nath Sen (1913) 20 IC 654 and it was held that the effect of the sale was to cancel the intermediate tenures if any. The mere fact that the landlord took proceedings u/s 167, Ben. Ten. Act, whether successful or unsuccessful, does not affect the consequences of the sale of the patni tenure enacted by the Panti Regulation. Para. 2, Section 11 of the Regulation is independent of the first and is as follows:

In like manner, on sale of a taluk for arrears, all leases originating with the holder of the former tenure, if creative of a middle interest between the resident cultivators and the late proprietor, must be considered to be cancelled, except the authority to grant them should have been specially transferred the possessors of such interests must consequently lose the right to hold possession of the land and to collect the rents of the raiyats; this having been enjoyed merely in consequence of the defaulter''s assignment of a certain portion of his own interest the whole of which was liable for the rent.

I am of opinion that the intermediate tenure which is supposed to have been purchased by Maharaj Bahadur had no existence after the sale of the patni interest on 4th June 1925. The defendants have therefore no defence and I would allow these appeals with costs and restore the decrees of the Munsif.

Kulwant Sahay, J.

I agree.