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MofizuddIn Sardar Vs. Lakhan Bairagi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.254
AppellantMofizuddIn Sardar
RespondentLakhan Bairagi and ors.
Excerpt:
bengal tenancy act (viii of 1885), sections 15 and 16 - secession to permanent tenure by holder of inferior interest--notice of succession to collector--want of notice, effect of--recovery of rent--object of notice. - .....each case to recover rent. the opposite party in each case holds a karsa holding under a kayerni karsa tenure, which is held under a howla, the howla being held under a patni. the present petitioner, the plaintiff, is the proprietor of the patni, the howla right and the kayerni karsa right. when the suits were instituted, an objection in each case was taken by the tenant to their proceeding on the ground that the plaintiff was not entitled to recover by a suit the rents claimed, because he, as proprietor of the kayerni karsa tenure, did not serve on himself as proprietor of the howla light a notice as required by section 15 of the bengal tenancy act. both the lower courts have given effect to this objection and dismissed the suits. against the judgments and decrees in both suits, these.....
Judgment:

Cecil Brett, J.

1. These two Rules have been issued in respect of judgments and decrees passed in two suits brought by the petitioner against the opposite party in each case to recover rent. The opposite party in each case holds a karsa holding under a kayerni karsa tenure, which is held under a howla, the howla being held under a patni. The present petitioner, the plaintiff, is the proprietor of the patni, the howla right and the kayerni karsa right. When the suits were instituted, an objection in each case was taken by the tenant to their proceeding on the ground that the plaintiff was not entitled to recover by a suit the rents claimed, because he, as proprietor of the kayerni karsa tenure, did not serve on himself as proprietor of the howla light a notice as required by Section 15 of the Bengal Tenancy Act. Both the lower Courts have given effect to this objection and dismissed the suits. Against the judgments and decrees in both suits, these applications have been made and these Rules have been issued on the opposite party to show causa why the judgment and decrees of the District Judge, dated the 18th May 1912, dismissing the appeal as well as the judgment and decrees of the Court of first instance dismissing the suits of the petitioner should not be set aside on the ground that they appear to have been passed on a misconception of the provisions of Sections 15 and 16 of the Bengal Tenancy Act.

2. No one appears to oppose the Rule No. 5451, and the Rule must be made absolute but without costs. The petitioner, however, is entitled to recover from the opposite party his costs in the lower Appellate Court.

3. In Rule No. 5452 appearance has been entered on behalf of the opposite party; and it has been contended that in strict accordance with the provision of Section 16 of the Bengal Tenancy Act, the petitioner, the plaintiff, was not entitled to recover by suit the rents claimed. The argument addressed to us is that the intention of the law was, by requiring service of a notice on the superior tenure-holder or landlord, to give that person information which would enable him to alter his register. In fact, the two sections say nothing about any alteration of register. But the object of the two sections appears to be to give information to the superior landlord of any change in his tenants or subordinate tenure-holders.

4. The learned Judge in disposing of the appeal has fallen into an obvious error. He seems to be under the impression that without issue of such a notice, the Collector's register cannot be amended so as to show who is the proprietor of the estate. The object of the section was certainly not to enable the Collector to amend any of his registers and the learned Judge does not mention which register of the Collector he refers to. In fact so far as we are aware, so far as is disclosed by the facts of this case and so far as the provisions of the law go, there is no ground for supposing that the Collector keeps any register of the transfer of subordinate interests in land, or that in fact that is any reason why he should keep such a register. The object of the notice prescribed by the two sections cannot, in our opinion, be taken to be to enable the Collector to amend his register. The only object is clearly to give information to the superior landlord or tenure-holder of a change in his tenants.

5. In the present case, the superior tenure-holder was the same individual as the present plaintiff who had succeeded to the kayerni karsa tenure. In such circumstances, we think it would be idle to hold that the law should be construed so strictly as to require him to serve on himself a notice to give himself information of a fact of which he was fully aware. We think both the lower Courts erred in law in holding that the provisions of these two sections were a bar to the present suit and that in a case like the present, where the person becoming entitled to the permanent tenure by succession, is the same person as the holder of the superior interest, it is not necessary for that person to serve on himself a notice of his succession to the inferior tenure or to pay to the Collector a fee which he himself would have afterwards had to withdraw. We think in the present case, whether the doctrine of merger can be taken to apply or not, it must be taken that the service of the notice was not a condition precedent to the institution of the two suits. In this connection, we may add that the howla includes the entirety of the kayerni karsa and the patni the entirety of the howla.

6. We, therefore, direct that the Rule No. 5452 be made absolute together with the Rule No. 5451, and that the judgment and decrees of the lower Appellate Court as also the judgment and decrees of the Court of first instance be set aside and the cases be sent back to the Court of first instance in order that they may be tried according to law.

7. The petitioner is entitled to recover his costs in this Court and in the lower Appellate Court from the opposite party. We fix the hearing fee at two gold mohurs.

Richardson, J.

8. I agree in the order proposed.


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