Rameshwar Singh Bahadur vs Mt. Rajo Chowdhrain

Jwala Prasad, Ag. C.J.

This application is directed against the order of the Munsif of Madhubani, dated 9th February 1924 allowing a claim of the opposite party preferred under Order 21, Rule 58 of the Code of Civil Procedure. The facts are that the holding in question was recorded in the name of Janakman Thakurain and Keshwar Thakur. Keshwar Thakur is dead and the name Janakman Thakurain according to the evidence notably of the witnesses on behalf of the opposite party alone stands; recorded in the landlord''s sherista. The opposite party claims about 1 bigha 18 Cotthas 11 & 1/2 dhurs out of the entire holding of 5 bighas odd under a gift made to her by her father Keshwar Thakur Her name has not been recorded in place of Keshwar Thakur in the landlord''s sherista. The landlord therefore obtained a rent decree with respect to arrears of rent due from the holding against Janakman Thakurain. In execution of that rent decree he has proclaimed the holding for sale. The attachment; and sale proclamation were issued simultaneously inasmuch as the decree to be executed was a rent decree. The decree is on the record and it clearly shows that it is a rent decree. The learned Court below has allowed the claim of the opposite party principally upon the ground that her possession as a daughter of Keshwar Thakur is not disputed.

The learned Munsif has not come to a definite finding as to whether the gift upon the basis of which the opposite party claimed a portion of the holding in dispute has been established or not. No deed of gift has been filed and it is admitted in evidence that no deed of gift was registered. One of the witnesses simply says that a deed of gift was executed but was not registered. The claim of the opposite party was not based upon inheritance but upon the aforesaid gift made by Keshwar Thakur. The Court below has therefore misapplied its mind to the consideration of the case. It has not also taken into consideration the provisions of Section 170, Ben. Ten. Act, by virtue of which Order 21, Rule 58 does not apply to an execution of a rent decree and that is upon the principle that a landlord is not bound to go beyond his own record to enforce his claim for arrears of rent and any person not recorded as a tenant must seek his remedy elsewhere and cannot be permitted to stand in the way of the landlord selling the holding for the realization of the decree obtained against his recorded tenant. The order of the Court below is therefore set aside and the claim of the opposite party Rajo Chowdhrain is disallowed with costs. The application is allowed with costs.

Macpherson, J.

I agree.