Sharafat Karim and Others vs Harangi Singh and Another

Wort, J.—These are plaintiff''s appeals in suit for rent. In the khewat and register D he is registered as regards six-annas 4 gandas odd. There are other cosharers regarding the remaining shares. In the khatian which was finally published in the year 1909 it is stated that the plaintiff is entitled to claim the whole rent and the learned advocate, who appears on behalf of the plaintiff-appellant in this case, contends that the reason for that entry was that he had been in adverse possession as regards the remaining shares and consequently had acquired title in the whole 16 annas. The Munsif allowed the plaintiff''s claim, but accepted the story of the defendants as regards payment with regard to certain years. When the matter came before the learned Subordinate Judge in appeal the decree was modified to the extent of giving the plaintiff a decree for 2 annas only, as the remaining 4 annas was in usufructuary mortgage. The basis of the learned Subordinate Judge''s decision was that the plaintiff was precluded from recovering the whole 16 annas rent by reason of the provisions of Section 60, Ben. Ten. Act and Section 78, Bengal Land Registration Act. Section 78, Bengal Land Registration Act 7 of 1876, as amended by Act 5 of 1878 provides:

No person shall be bound to pay rent to any person claiming such rent as proprietor, or manager, of an estate or revenue free property in respect of which he is required by this Act to cause his name to be registered or as mortgagee, unless the names of such claimant shall have been registered under this Act.

Now it is admitted that the plaintiff is not registered with regard to 16 annas as already stated. In appeal it is argued by the learned advocate on behalf of the appellant relying on the decision of Umeshwardhari Singh and Others Vs. Neman Singh and Others, that he is entitled to a conditional decree, that is to say, a decree conditional upon his having his name registered under the Bengal Act prior to his executing the decree and for that purpose he relies on the decision to which I have just referred. That was a case in which there had been a difference of opinion between Kulwant Sahay and Macpherson, JJ., and it was referred to Mullick, J., but there the facts were different. During the pendency of the second appeal the plaintiff had got his name registered under the Act. The only question which came to be decided by the Court was whether the Court in second appeal should take notice of the fact of registration and give the plaintiff a decree accordingly. During the course of the judgment of Mullick, J., the learned Judge made this observation:

In my opinion the section (referring to Section 78) is not inconsistent with the view that the suit may be brought; but that the Court shall not order the recovery of the rent by execution till registration is effected.

In this connexion also the Full Bench decision of the Calcutta High Court in the case of Alimuddin Khan v. Hira Lall Sen [1895] 23 Cal. 87 is relied upon; but the facts there were similar to the case in this High Court which Mullick, J., decided, that is to say, that during the pendency of the case after the institution of the suit the plaintiff had got his name registered. Now quite obviously the case of Alimuddin Khan v. Hira Lall Sen [1895] 23 Cal. 87 is no authority for the proposition which is advanced before us, although, as I have already stated Mullick, J., in deciding the case of Umeshwardhari Singh and Others Vs. Neman Singh and Others, was of opinion that the statute did not prevent an action being brought. But with all respect to the opinion of the learned Judge it is quite clear that his view on that point was merely obiter dictum and is not binding on this Court. It seems to me that the learned Subordinate Judge was right. The words of the section are: "No person shall be bound to pay rent to any person claiming such rent as proprietor, etc." then referring to registration under the Act. Now if no person is bound to pay rent to a person who is not registered then it seems to me that it naturally follows that no Court can enforce such payment. Therefore consequently no action by a person not registered under the Act can succeed; in other words, it is a bar to the plaintiff''s cause of action. Now if that view is correct it seems to me that it naturally follows that the plaintiff''s case fails and also his appeals fail and in my judgment they should be dismissed with costs.

Jwala Prasad, J.

I agree. I would like to add that Mullick, J., perhaps did not intend to hold that a decree can be passed for rent without the plaintiff having his name registered u/s 78, Land Registration Act. In that case, as pointed out by my learned brother, the plaintiff had his name registered during the pendency of the second appeal in this Court. In this case the plaintiff has not got his name registered up till now and is therefore not entitled to recover rent from the defendants in excess of the shares in respect of which his name has bean registered. Neither Section 78, Land Registration Act nor Section 60, Ben. Ten. Act, prohibits a suit being instituted for rent by a plaintiff without having his name registered under the Land Registration Act. These sections prohibit recovery of rent unless the plaintiff has his name registered. Therefore although the plaintiff is entitled to bring a suit without his name having been registered, he is not entitled to recover rent unless he gets his name registered. Now a decree made by a Court is a direction to the defendant to pay the amount decreed to the plaintiff. In other words, the decree orders recovery of rent by execution of the decree. Therefore upon the principle underlying the aforesaid section no decree for rent can be passed without registration of the plaintiff''s name. In that sense Mullick, J, observed:

In my opinion the section is not inconsistent with the view that the suit may be brought but that the Court shall not order the recovery of the rent by execution till registration is effected.

It seems to me that the learned Judge meant that the Court shall not pass a decree for rent in execution of which the plaintiff would recover the rent. On the other hand if it was meant that a conditional decree for rent can be passed in favour of the plaintiff imposing a condition that he would be able to execute a decree upon having his name registered in register D of the Collectrate, the aforesaid observation of Mullick, J., would be obiter dictum, as already observed by my learned brother.