Sukhdeo Pandeyh and Another vs Rameshwar Prasad Agarwala and Others

Rowland, J.—This appeal though valued at under Rs. 100 has given rise to a question of title and was referred to a Division Bench by the Single Judge before whom it at first came for hearing. The suit was instituted as a title suit, the prayers in the plaint being in the first instance to have a declaration that the land in suit is the kasht land of defendants 1 to 3 of which the rent is Rs. 24-3.6 plus cess; that the plaintiffs are landlords of this holding to the extent of 2/3rds share and are entitled to 2/3rds of the rent. The other 5 annas 4 pies cosharers are the defendants who are impleaded as pro forma defendants. In accordance with the declaration claimed above, the plaintiffs ask for a decree for the sum due, Rs. 72-14-0, against the defendants first party and defendants second party and for an order for recovery of costs from either defendants first party or defendants second party. The nature of the title set up by the parties will appear from the history of the land. The suit refers to plot No. 303 in khata No. 2 in tauzi'' No. 56 in village Nargada. Its area is 7 bighas 15 kathas and the rent as alleged by the plaintiffs is Rs. 24.3-6. The proprietors of this tauzi No. 56 were at one time three brothers Earn Autar, Bankey Behari and Radha Raman holding in equal 1/3rd shares. Within it there was a bhauli holding of 23 bighas 16 kathas of one Mahant Ramgir. This included the rent claimed land. The holding was put to sale on 6th February 1904 and was purchased by Ramnagina and it was described as kasht land and delivery of possession was taken on 5th May 1904. Out of this, Ramnagina sold 11 bighas 16, kathas on 2nd July 1904 to Bisesarnath.

This area included the rent claimed land which is still described as kasht. The above Bisesarnath transferred 7 bighas 13 kathas out of his purchased land on 3rd January 1905 to Bankey Behari, one of the three proprietors. This 7 bighas 15 kathas is the exact area now in suit. The land was described as kasht land and it is stated that after this transfer its rent was commuted to nagdi rent at Rs. 24-3-6 and apparently it has been found by the Courts below that this was so. On 19 th May 1905, Bankey Behari gave this plot No. 303 in usufructuary mortgage to, one Basdeo as security for an advance of Rupees 2000. The land is still described as kasht land. Thereafter there was a dispute between the three proprietors resulting in an award dated 28th December 1908.

In pursuance of this award Bankey Behari sold the disputed plot, 7 bighas 15 kathas to Ram Autar, another of the three proprietors on 12th January 1909. The land is described as kasht land bearing a rent of Rs. 24-3-6. This acquisition by Eamautar must have been subject to the lien of Basdeo for his advance of Rs. 2000. On 23rd October 1909 Eamautar raised a loan of Rs. 2995 from the defendant second party on a usufructuary mortgage of this same plot. Of the consideration, Rs. 2000 was left with defendants second party for payment to the previous creditor Basdeo and this was paid off. In this document the land is described as Ramautar''s zerat land. The next event affecting the history of the land is the revisional survey record of rights prepared in 1911. Here the plot in question is shown in bakasht khata No. 2 of the proprietors and as belonging to Ramautar with defendants second party as rehandars in possession. Ramautar seems to have created a simple mortgage on his entire 5 annas 4 pies share in the tauzi. At any rate a mort. gage decree was obtained against him and in execution this entire share was put up to sale and was purchased on 12th May 1920 by Nand Bahadur, predecessor of defendants third party of the present suit. It is the case of the defendants second party who are appellants here that by this execution purchase defendants third party took along with the 5 annas 4 pies share in the milkiat all rights of Ramautar in this plot 303.

Then on 30th September 1921 Nand Bahadur gave a mokarrari lease to defendants second party in respect of the rent claimed land. The premium for the lease was fixed at Rs. 2995 which was set off against the previous dues of these defendants under the rehan of 23rd October 1909 and the rent payable to Nand Bahadur for the land was fixed at Rs. 8-10-0 in perpetuity. On the other hand, Ramautar on 1st November 1921 (as if the sale of his 5 annas 4 pies share had not affected his right to hold the rent claimed land as a tenant) sold or purported to sell that tenancy right in the rent claimed land to defendants first party, defendants 1 to 3, on a consideration of Rs. 4000 of which Rs. 2995 was left with the purchasers for the purpose of paying off the rehan of 1909 in favour of the defendants second party. In this document the land is described as kasht land of Ramautar. Ramautar''s other cosharers in the tauzi transferred their shares to the plaintiffs in 1922. At present therefore the proprietary interest in the tauzi is held to the extent of 2/3rds by the plaintiffs and to the extent of 1/3rd by defendants third party.

The whole appeal turns on the question whether after the 12th May 1920 a tenancy subsisted in Ramautar which he could transfer to defendants first party or whether from 12th May 1920 onwards Nand Bahadur had succeeded along with his purchase of the tauzi in general to a right of the nature contemplated by Section 22, Bengal Tenancy Act, that is to say a right to hold this plot 303, a plot the rent of which was Rs. 24-3-6, subject to payment to his cosharers of 2/3rds of this rent. The Munsif held that the land had become bakasht and that Eamautar had no interest in it on 1st November 1921. Therefore the defendants first party did not acquire any interest in it by virtue of their purchase. He also expressed an opinion that the rental of the holding now is Rs. 8-10-0 only. On this view he dismissed the suit.

In appeal the Additional District Judge took the opposite view regarding the rights which Ramautar had in the suit land while he was proprietor and as to the effect on those rights of the auction sale in favour of Nand Bahadur. The District Judge thought that first Bankey Behari and then Ramautar each of them as a 5 annas 4 pies proprietor of the village acquired by their purchase of the raiyati right of Mahant Bamgir the right to hold it not only during the subsistence of their right as cosharer proprietors, but also after they lost that right on its transfer to others, not as bakasht but as tenants independently of their proprietary right with liability to pay the proportionate rent to the other cosharer landlords u/s 22(2), Bengal Tenancy Act, before its amendment in 1907. For this proposition he relied on Basudeo Narain v. Radha Kisan A.I.R (1922) . Pat. 62 and two other similar decisions; but the point for decision in those cases was not the same as here. Undoubtedly, it is a correct proposition of law that when a cosharer proprietor acquires the holding of an occupancy raiyat, the holding does not cease to exist. In Bambahadur Lal v. Mt. Gungra Kuer A.I.R (1925) . Pat. 547 the Court was considering the results which followed when there was a subsequent partition in the tauzi and the land fell within the share of another cosharer.

It was held in the result that the right to hold the land still continued and the other cosharer would receive in future the rent of the holding from that proprietor who had acquired the right to hold the land. But the question in the present case is a different one. The position we have to consider is that in which Ramautar having acquired a holding has parted by sale with his proprietary interest in the tauzi. The question is whether the land which he holds within the tauzi will pass to the purchaser along with Ramautar''s share in the tauzi.

This specific point was considered in this Court in Bambahadur Lal v. Mt. Gungra Kuer A.I.R (1925) . Pat. 547. In this case it was pointed out by Kulwant Sahay J. that the status of a cosharer landlord who has purchased an occupancy holding is not the status of a raiyat but a peculiar status. His right is that of a proprietor entitled to retain possession of the land subject to payment to his Co-proprietors of their shares of the rent. The status is a peculiar status which attaches to the cosharer so long as he remains a cosharer. If he ceases to be a co-sharer and his proprietary interest is lost, then he has no right to retain possession of the land and it would pass on to the person who acquires the interest of that co-sharer. That decision is directly in point and in my view we are bound to follow it. In Gopi Singh v. Jagdeo Singh AIR (1927) Pat. 172. Dawson Miller C.J., again stated the law applicable where the occupancy right of a tenant is transferred to a fractional proprietor. In this case his Lordship said:

Although no occupancy right can vest in the fractional proprietor, he still acquires a separate interest in the raiyati holding paying to his co-proprietors their share of the rent. This interest passes to his transferee with the transfer of the proprietary interest and the holder can sublet the same to another who thereupon becomes a raiyat of the holding.

These two decisions in my opinion are sufficient authority for holding that by Nand Bahadur''s purchase on 30th September 1921 the right passed to hold plot 303 subject to payment by Nand Bahadur of 2/3rds of the rent to his cosharer proprietors. According to the observation in the latter of these decisions Nand Bahadur was entitled to sub-let the same to another person who thereupon becomes a raiyat of the holding and on that view the mukarrari patta in favour of the defendant second party would be valid; they are tenants under Nand Bahadur and not under the plaintiffs. As for Ramautar nothing would be left in him which he could transfer to any person by purporting to execute a sale deed dated 1st November 1921. The defendants first party took nothing and have not become tenants of anybody.

Before leaving this appeal I think it should be observed that the plaintiffs have not made any claim of rent against defendants third party and the question of their right to recover it from those defendants cannot be decided in this appeal so as to be binding between the plaintiffs and those defendants. Similarly, the question of the right of defendants third party to recover rent from defendants second party at rupees 8-10.0 is a matter not directly in issue between those parties in this appeal and whatever we may say about it will not be binding between those parties. It has been necessary to make some observations as to the title of these parties for the purpose of determining the appeal as between the plaintiffs and the defendants first and second parties and for determining the result of this appeal. It follows from what I have said that the plaintiffs are not entitled to recover any rent from defendants second party or defendants first party. What I have said above is I think sufficient for the disposal of the appeal; but I may refer to another objection preferred by the appellants to the District Judge''s decree and that is that defendants second party were in any case not tenants under the plaintiffs. They were mortgagees in possession from Ramautar up till 1921 when they obtained the mukarrari patta from Nand Bahadur and if that mukarrari patta was of no effect they are still mortgagees in possession. As such there is no private of contract between them and the plaintiffs. It was suggested for the respondents that it was not a question of privity of contract but of privity of estate; but privity of estate between the lessor and the lessee''s assignee can hardly be said to arise except where the interest of the lessee has been transferred in whole ''to an assignee. The respondents have at. tempted to escape the conclusion that Bam-autar''s interest passed on the ground that the decision in Bambahadur Lal v. Mt. Gungra Kuer A.I.R (1925) . Pat. 547 was a case referring to transfers after the amendment of the Bengal Tenancy Act in 1907. I do not see why this should make any substantial difference so far as the point that we are considering is concerned. In the other case in Gopi Singh v. Jagdeo Singh A.I.R (1927) . Pat. 172 the purchase, the effect of which was being considered was actually made before the amendment of the Bengal Tenancy Act.

In the result I would allow the appeal with costs of this Court and of the lower Appellate Court, set aside the decree and judgment of the District Judge and restore the decree of the Munsif.

Chatterji, J.

I agree.