Sidheshwari Singh and Another vs Rajbaran Singh and Others

Mahabir Prasad, J.—This is plaintiffs'' appeal from a decision of the Additional Subordinate Judge of Patna confirming a decision of an additional Munsif of the same place.

The only question now which falls to be determined in this appeal is as to whether the sale held on 14th June 1941 in execution of a decree affected the interest of the plaintiffs who purchased the holding from a transferee of the recorded tenant, after the passing of the decree, and before its execution, and deposited the landlord''s fee in favour of the landlord recorded in register D and was not impleaded as a party to the execution proceedings.

The facts are these: Defendant 1 obtained a decree against the son of the recorded tenant Mahabir on 8th December 1938. Mahabir''s son gold the holding to one Sheogobind on 3rd April 1939. The plaintiff purchased the holding from Sheogobind on 23rd May 1939. The decree was put into execution in the year 1941 in Execution case No. 221 of 1941. The holding was sold and purchased for a sum of Rs. 74 by the principal defendant l, This suit was instituted for a declaration of title and delivery of possession over the holding on, the allegation that the decree was obtained by fraud by defendant 1 after having suppressed all the processes and as the suit was not constituted in accordance with the provisions of Section 148, Bihar Tenancy Act, it was in any event not a rent decree, and merely passed the interest of the parties to the suit, and the sale held in execution of that decree was not a rent sale a3 the plaintiff who had purchased the holding in the meantime and had deposited the landlord''s fee at the time of the registration of the sale deed in their favour were not joined as a party to the execution proceedings.

The Courts below have concurrently held that the decree obtained in the suit was not tainted with fraud and was a rent decree. This question is no longer in controversy and the findings of the Courts below in this behalf are not challenged before us. What is contended on behalf of the plaintiff-appellants is that by reason of the fact that the landlord''s fee as required by Section 26B of the Bihar Tenancy Act, was deposited in favour of the landlord registered in register p, the transfer in favour of the plain, tiff had become binding upon the landlord and it was incumbent upon the landlord to join the plaintiff as party to the execution proceedings in order that the holding might pass at the sale in accordance with the provisions of the Tenancy Act. At the time the sale was held the judgment, debtor had no subsisting interest in the holding and the sale, therefore, did not operate to pass any interest to the auction purchaser. The plaintiff, therefore, is entitled to recover possession of the holding from the defendant purchaser.

It is contended on behalf of the respondents that the plaintiff knew that the landlord of the holding was defendant 1 although he was not recorded in register D as it is found as a fact that when the holding was sold to the plaintiff the decretal amount was left in deposit with him by Mahabir''s son to be paid to the decree-holder, defendant 1. The plaintiff was, therefore, bound to name the defendant in the notice meant to be served on the landlord intimating him that the holding has been transferred and the landlord''s fee has been deposited. The plaintiff in the present case instead of naming the defendant as the person to whom the notice was to be sent as the landlord of the holding, named the person who stood recorded in Register D as the landlord, although to the knowledge of the plaintiff he was no longer the landlord of the holding. In the circumstances it is contended that the deposit of the landlord''s fee was not valid and the transfer in favour of the plaintiff was not binding upon the defendant decree-holder, and he was not obliged to join the plaintiff as a party to the execution proceedings. The purchase made by him at the sale, therefore, must be held to have been a purchase at a rent execution validly passing the holding to him.

The question is whether the landlord to be named in the notice for transmission of the fee deposited under the provisions of the Act must necessarily be the landlord recorded in Register D or one who may be actually in possession of the village as a landlord although he may not be recorded as such in Register D. The answer to the question appears to depend upon as to whom the transferee is bound to pay rent of the holding which is being transferred. u/s 60, Tenancy Act, payment by a tenant to one registered under the Land Registration Act as proprietor, manager or mortgagee of an estate operates as a sufficient discharge for the rent and the person liable for the rent is not entitled to plead in defence to a claim by a person so registered that the rent is due to any third person. u/s 78, Land Registration Act, no person is bound to pay rent to any person claiming such rent as proprietor or manager of an'' estate unless the name of such claimant shall have been registered under the Act. It is clear that a person who, under the law, is entitled to claim payment of the rent of the holding and is in a position to give sufficient discharge for the rent is the person, who, as landlord within the meaning of this section, is to be notified regarding the transfer of the holding and entitled to receive the landlord''s fee deposited under this section the transferee of the holding is under the law bound to pay rent to him and to no third person not recorded in Register D. The contention of Mr. Lalnarain Sinha for the respondent that in the circumstances of the present case the plaintiff was to deposit the landlord''s fee in favour of the decree-holder because it was known to him that he as landlord had obtained the decree in execution of which the holding was sold cannot be accepted. The plaintiff having deposited the landlord''s fee in favour of the proprietor who stood recorded in Register D must be deemed to have been recognised as a transferee of this holding and the execution proceedings not having been taken against him, the sale dated 14th June 1941 must be held to be not binding upon him. At the time of the sale the judgment-debtor having already transferred his interest in the holding had no subsisting interest which could be sold and purchased by the defendant. It must, therefore, be held that the plain, tiff is entitled to recover possession of this holding from the defendant on declaration of his title as prayed for.

In the result, the appeal is allowed, the decisions of the Courts below are set aside, and the plaintiff''s suit is decreed with costs through, out.

Manohar Lall J.

I agree.

Section 26A(2), Bihar Tenancy Act provides inter alia that the transfer of an occupancy holding shall be made in the same manner and subject to the same conditions as a permanent tenure in respect of registration and the payment of landlord''s registration fee. Turning to Section 12 which makes provision for the transfer of permanent tenures, it will be found in Clause (2) that the registering officer shall not register any instrument purporting or operating to transfer unless there is paid to him the landlord''s fee and the costs necessary for transmission of that fee to the landlord. The transferor or the transferee has to state in the notice that has to be served on the landlord the name of the landlord on whom the notice has to be served.

The question is whether the landlord named in the notice is the landlord whose name stands recorded in Register D of the Collector, or is he the real landlord though he may have omitted to get his name registered in Register D. The scheme of the Bihar Tenancy Act read with the relevant provisions in the Land Registration Act coerces me to come to the conclusion that the landlord must mean "the landlord" whose name is entered in Register D. If such a landlord instituted a suit for rent, it would be no answer by the defendant that he had paid the rent to the real landlord. The Collector when he serves notice u/s 12 must also recognise the then landlord whose name is entered in his Registers. If the transferor or the transferee states in his application the name of another landlord, then he must take the consequences if, the notice has not been served upon the land, lord named in Register D. For these reasons, I agree that the plaintiff having deposited the landlord''s fee in favour of the landlord who stood recorded in Register D must be deemed to have been recognised as a transferee of this holding with the result that as the execution proceedings were not taken against him, the sale of 14th June 1941 is not binding upon the plaintiff.