Skip to content


Ruhini Kumar Das and ors. Vs. AmiruddIn Kaviraj and ors. - Court Judgment

LegalCrystal Citation
Subject Tenancy
CourtKolkata
Decided On
Judge
Reported inAIR1932Cal405,137Ind.Cas.668
AppellantRuhini Kumar Das and ors.
RespondentAmiruddIn Kaviraj and ors.
Cases ReferredAswini Kumar v. Har Kumar
Excerpt:
bengal tenancy act (viii of 1835), section 60 - bengal land registration act (vii of 1876), section 78--transfer of part of occupancy holding--purchase by landlord in execution of money decree--landlord's right to eject transferee--estoppel--abandonment--plea at late stage. - .....title in the lands in suit.2. the learned subordinate judge in the trial court found that the rent decree obtained by the sukuls was a money decree and they purchased under it the right, title and interest of the judgment-debtors, which was then existing only in plot no. 1212. he accordingly decreed the suit for the two-thirds share of settlement plot no. 1212 and dismissed the rest of the plaintiffs' claim. on appeal the learned additional district judge held that the rent suit brought by the sukuls in 1920 was a rent suit under the bengal tenancy act, and the tenancy passed to the landlords who had the right to settle it with the plaintiffs. the learned additional district judge further held that even if the landlords did not by their purchase in the rent decree, obtain a title to.....
Judgment:

Suhrawardy, J.

1. The facts upon which the decision of these appeals rests are that some persons living in the United Provinces named Sukuls obtained an ijara of a tenure from the Government in a khas mahal. The Sukuls formed three groups of persons governed by the Mitakshara School of Hindu law. The three groups were not living in commensality but each group formed a Mitakshara family. There was a non-transferable raiyati jote under them held by two tenants Balaram and Bhagaban (hereinafter called original tenants). On the death of the latter his four sons were joint tenants with Balaram. Although the tenancy was nontransferable, the tenants sold away a major portion of the tenancy to a number of persons including the defendants who were entered in the Record of Rights prepared subsequently as in possession of the several plots. There was only one plot No. 1212 which was shown in the possession of the original tenants. On 12th January 1920, the Sukuls brought a suit for arrears of rent against the original tenants in respect of the tenancy. The plaintiffs were registered as ijaradars under the Land Registration Act. They secured a decree on 25th February 1920. in execution of that decree they purchased the tenancy and were put in symbolical possession of it on 28th March 1922. Subsequently the defendants executed a kabuliyat in favour of one Kamta Prosad one of the Sukuls who it was said represented the entire body of the landlords, on 22nd Bhadra 1329 B. S., (September 1922). On 15th Magh 1329 B. S., (January or February 1923), the plaintiffs in this suit executed a kabuliyat in favour of the two groups of the landlords owning two-thirds interest in the tenure. This suit was brought by the plaintiffs to recover the two-thirds share in raiyati title in the lands in suit.

2. The learned Subordinate Judge in the trial Court found that the rent decree obtained by the Sukuls was a money decree and they purchased under it the right, title and interest of the judgment-debtors, which was then existing only in plot No. 1212. He accordingly decreed the suit for the two-thirds share of settlement plot No. 1212 and dismissed the rest of the plaintiffs' claim. On appeal the learned Additional District Judge held that the rent suit brought by the Sukuls in 1920 was a rent suit under the Bengal Tenancy Act, and the tenancy passed to the landlords who had the right to settle it with the plaintiffs. The learned Additional District Judge further held that even if the landlords did not by their purchase in the rent decree, obtain a title to the tenancy, there was in the circumstances of this case an abandonment by the original tenants and they had the right to re-enter. It should be noted that both the Courts below have agreed in holding that the defendants' lessor Kamta Pershad had no authority to give a lease on behalf of all the landlords. The case was accordingly fought on the footing of the defendants' right as transferees from the original tenants.

3. The defendants have appealed to this Court. It is argued on their behalf that the view taken by the learned Additional District Judge on both the points is wrong in law.

4. With regard to the first ground it appears that in the group of the landlords owning one-third interest in the tenure which Kamta Prosad represented, there was a son of Kamta Prosad named Shib Gobinda who was not a plaintiff in the rent suit. It further appears that there was some dispute with regard to Shib Gobinda's title and he had to bring a suit against the members of his family to establish it and that suit was decreed on 19th November 1919. The rent suit by the Sukuls against Balaram and others was filed on 12th January 1920. It is argued that the absence of Shib Gobinda from the category of the plaintiffs made the suit a money suit and the decree passed in it a money decree. The learned Additional District Judge overruled this plea which was accepted by the learned Subordinate Judge, on the ground that the names of the plaintiffs were registered under the Land Registration Act and therefore they wore entitled to maintain the rent suit even in the absence of one of the landlords whose name was not registered inasmuch as the tenants under Section 60, Ben. Ten. Act, cannot set up the right of any person other than those whose names are registered under the Land Registration Act, as entitled to rent. This gives rise, to a grave question as to whether some of the landlords, who got their names registered in the land Registration record are entitled to maintain a suit for vent under Ch. 14, Ben. Ten. Act; but it is not necessary to consider this question inasmuch as in our opinion the Land Registration Act has no application to the facts of this case.

5. The preamble of the Land Registration Act of 1876 says that this Act is in-tended to provide for the registration of revenue paying and revenue free lands and for the preparation and maintenance of registers of revenue paying and revenue free lands and the proprietors thereof. Section 78 of the Act says that 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 the Act to cause his name to be registered, unless the name of such claimant shall have been registered under the Act. The word 'estate' used in Section 78 has been defined in Section 3 (2) as any land subject to the payment of land revenue or any land which is entered on the revenue roll as separately assessed or any land being the property of the Government of which the Board shall have directed separate entry on the general register. The Act accordingly requires registration of revenue free land or revenue paying land and land belonging to the Government which the Board should have directed to be separately entered on the general register. The tenure hold by the Sukuls is neither revenue free nor revenue paying land but it may be an 'estate' as defined by Section 3 '(2) of the Act. There is no proof however in this case that this particular Khas Mahal was ever directed by the Beard to be separately entered en the [general register. In the absence of such proof it cannot be premised that the tenure held by the Sukuls is one which [comes within the purview of the Land [Registration Act, and therefore the privilege given to the recorded proprietors Sunder Section 78 of the Act cannot be availed;of by the Sukuls. That being so and it also being proved that one of the landlords, Shib Gobinda, was not a party to the rent suit of 1920, it must be held that the decree obtained in that suit was a money decree and not a rent decree.

6. The next question that arises is the effect of the. sale in the execution of the cent decree obtained by the Sukuls on the interest of the appellants. If it was not a rent decree, only the right, title and interest of the judgment-debtors passed to the purchasers, the plaintiffs, under the decree in the suit. Now what was the right of the original tenants at the time of the decree? They had disposed of a major portion of their tenancy land to the defendants and they had no right to recover it from the defendants. The only property in their possession in which they had right, title and interest, was plot No 1212. The decree-holders therefore purchased the right, title and interest of the original tenants in plot No. 121.2 and did not obtain any interest in the other plots in which the original tenants had no interest and no right to reject the defendants therefrom. In Pran Krishna v. Mukta Sundari [1913] 21 I.C. 544 at p. 197 (of 18 C.L.J.) N.R. Chatterjee, J., observed:

In the case of a purchase by the landlord of the lights of a raiyat by a conveyance it has been held that the landlord cannot eject the under-raiyat without putting an end to the tenancy according to law .... The landlord who acquires as the rights of the occupancy holder under a private sale cannot claim any higher right than the occupancy holder himself had.

7. This view which was supported by the decisions in Amirulla Mahomed v. Nazir Mahomed [1904] 31 Cal. 932 and Lal Mahomed Sarkar v. Jagir Sheikh [1909] 2 I.C. 654 was not dissented from by Jenkins, C.J., and Mookerjee, J., in the Letters Patent Appeal from the judgment of N.R. Chatterjee, J. The principle underlying these decisions is what seems to have been the basis of the decision of the Full Bench in Mohsenud-din v. Baikuntha Chandra A.I.R. 1921 Cal. 444. There it was held that a surrender by a tenant after he has transferred a portion of the tenancy does not affect the portion so transferred. One of the grounds which influenced the learned acting Chief Justice to come to the above conclusion in the Full Bench case was that to hold otherwise would be to enable the original tenant to commit fraud with the help of his landlord by transferring a portion of his interest to another person and then surrendering the entire tenancy to the landlord and thereafter taking a fresh lease from him thus practising an atrocious deception upon the transferee. The same consideration would govern a case where a tenant, having parted with a largo portion of his raiyati allows the rent to fall into arrears and enables the landlord to bring a suit for rent and obtain a decree which is not a rent decree and get the property sold in execution of that decree and obtain a resettlement thereafter. The principle upon which all those cases are founded is that a grantor should not be permitted to do any act in derogation of the grant. In my judgment, accordingly the plaintiffs in the rent suit purchased only the right which then existed in the tenant to the land in suit which right extended to plot No. 1212 only, The purchasers under the decree in that suit standing in the shoes of the original tenants cannot claim a higher right and eject the defendants from the lands transferred to them by those tenants.

8. The second point upon which the learned Additional District Judge has relied is the question of abandonment. It may be noted that this question was not raised in the pleadings, but it was adumbrated in the argument before the learned Subordinate Judge. It can hardly be disputed that the question of abandonment is a question of mixed law and fact: Aswini Kumar v. Har Kumar : AIR1928Cal891 . Such a question should not be allowed to be raised at the time of the argument or at a subsequent stage of the litigation. The [learned Additional District Judge argues that the tenants having parted with their interest in the major portion of the tenancy in favour of the defendants and the landlords having purchased the remaining portion themselves they are entitled to treat the entire raiyati as having been abandoned or at any rate it should be held that the tenancy was extinguished by these facts and the landlords had the right to re-enter. We do not think that the Sukul plaintiffs in the rent suit had any such right, as we have said that they could not by their purchase obtain the right to eject the defendants...the transferees of the original tenants. To hold that by their own purchase they are entitled to prove that the tenancy had been extinguished is to allow them to achieve by indirect means what they could not do as purchasers at the execution sale. The real objection which seems to be of great force to my mind is that this question ought not to have been allowed to be raised after the close of evidence.

9. The result of all these considerations that Second Appeal No. 1554 must be allowed and Appeal No. 1555 dismissed with proportionate costs in all Courts. Costs allowed to be sot off.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //