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Surendronath Pal Chowdhry and ors. Vs. Tincowri Dasi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal247
AppellantSurendronath Pal Chowdhry and ors.
RespondentTincowri Dasi
Cases ReferredLuckhinarain Mitter v. Khetter Pal Singh Roy
Excerpt:
sale for arrears of rent - patni tenure, sale of--registration in zemindar's serishta--rights of zemindar--bengal regulation viii of 1819, section 5, 7--bengal tenancy act (viii of 1885), section 13. - .....suit to pay the rent of a property of which he is not in possession, has any remedy against the unregistered purchaser in possession, provided it be established that that purchaser has refused unreasonably and improperly to get himself registered in the zemindar's books, and thereby to relieve the former tenant from liability, is a matter which is not before us, and which we have no right to determine. what we have before us is simply this question : does or does not this suit lie against the old tenant, and we think we are bound to hold that it does, and that the rights of the zemindar, as stated in the judgment of this court, to which we have referred, are not affected by the existence of the remedy provided by section 7, and that there is no defence to the suit. we must therefore.....
Judgment:

Pigot and Rampini, JJ.

1. In this case the appellants were the holders of a patni, their interest in which has been sold in execution. The purchaser in execution has not agreed with the zemindar with respect to the amount of fee payable by him on the transfer of the patni to his name under the provisions of Section 5, Regulation VIII of 1819. The purchaser appears to dispute the amount of the fee, and as the result of that controversy the purchaser of the execution-sale has not got himself registered, and although he is in possession, the rent for which this suit is brought against the old tenant is undoubtedly unpaid. A decree has been given by the Lower Court against the old tenant for the amount of the rent due, and he appeals. No question has been raised in the argument before us as to the fact of the rent being due, or as to the amount of the rent which is due, but it is contended that inasmuch as the former owner of the patni who has lost it in the execution-sale is not in possession, and inasmuch as the purchaser is in possession, the suit ought not to have been allowed to proceed against him, but that the purchaser who is in possession ought to have been proceeded against under the terms of Section 7 of Regulation VIII of 1819, and it is also contended that inasmuch as that section confers upon the zemindar the exceptional power of attachment through a sezawal against the purchaser in possession, that by implication ought to be treated as constituting the only remedy of the zemindar, when the assignee of the tenancy is in possession, and as taking away the power of suing the old tenant. In the case of Luckhinarain Mitter v. Khetter Pal Singh Roy 13 B.L.R. 146 cited by the Subordinate Judge, Section 7 of the Regulation is thus referred to: 'The zemindar or other superior holder in certain cases is empowered to attach the property, if the subordinate holder neglects to register his name and to hold it in trust for the subordinate holder, and in all cases until the transfer is registered the old tenant and the tenure itself are liable for the rent due.' Now, it appears to us that we cannot challenge the law so laid down by this Court many years ago. Whether this is a casus omissus in the law, or whether the former tenant, compelled in this suit to pay the rent of a property of which he is not in possession, has any remedy against the unregistered purchaser in possession, provided it be established that that purchaser has refused unreasonably and improperly to get himself registered in the zemindar's books, and thereby to relieve the former tenant from liability, is a matter which is not before us, and which we have no right to determine. What we have before us is simply this question : does or does not this suit lie against the old tenant, and we think we are bound to hold that it does, and that the rights of the zemindar, as stated in the judgment of this Court, to which we have referred, are not affected by the existence of the remedy provided by Section 7, and that there is no defence to the suit. We must therefore dismiss the appeal with costs.


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