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Najabat Ali Vs. Bibi Kadiran - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in53Ind.Cas.49
AppellantNajabat Ali
RespondentBibi Kadiran
Cases Referred and Abul Khair v. Meher Ali
Excerpt:
civil procedure code (act v of 1908,), section 115 - objection abandoned by pleader--subsequent objection by successor of pleader, whether can be entertained--irregularity--revision--bengal land registration act (vii b. c. of 1876), section 78, scope of--tenant, whether can waive provisions of section--suit for arrears of rent assigned to plaintiff--registration, whether necessary. - .....the claim on the ground, among others, that the plaintiff had not registered his name under the land registration act of 1876, and was consequently not competent to sue in view of the provisions of section 78. it is stated on behalf of the plaintiff in this court, and not denied on the part of the defendant, that this objection was abandoned by the pleader for the defendant, in the court of first instance. the plaintiff, however, applied to the revenue authorities for a copy of the land registration decree. when the case came on for trial, a new pleader appeared for the defendant and was allowed to press this point, although it bad been abandoned by the pleader who originally appeared f6r the defendant. the plaintiff was taken by surprise, and as he was not ready with the copy of the.....
Judgment:

1. We are invited in this Rule to set aside a decree of dismissal in a suit for rent, in which the value of the claim was under Rs. 100. On the 2nd July 1908 the plaintiff purchased the interest of the landlord as well as the back rent due. On the 5th February 1909 he instituted this suit for recovery of arrears for 1906, 1907, 1908 and two instalments of 1909. The claim in respect of the years 1906, 1907, 1908 was for back rent to which he had acquired title by purchase. The remainder of the claim has accrued due since his purchase. The defendant resisted the claim on the ground, among others, that the plaintiff had not registered his name under the Land Registration Act of 1876, and was consequently not competent to sue in view of the provisions of Section 78. It is stated on behalf of the plaintiff in this Court, and not denied on the part of the defendant, that this objection was abandoned by the Pleader for the defendant, in the Court of first instance. The plaintiff, however, applied to the Revenue Authorities for a copy of the land registration decree. When the case came on for trial, a new Pleader appeared for the defendant and was allowed to press this point, although it bad been abandoned by the Pleader who originally appeared f6r the defendant. The plaintiff was taken by surprise, and as he was not ready with the copy of the land registration decree, the suit was dismissed. He subsequently applied for review of judgment. Notice was thereupon issued to the defendant and although the copy of the land registration decree was produced, the application for review of judgment was ultimately dismissed. An appeal against the original decree was then lodged before the District Judge, and was sought to be supported on the ground that it was not obligatory upon the plaintiff to have his name registered under Section 78 of the Land Registration Act in respect of the back rent. It does not appear, however, whether the copy of the land registration decree, which had been filed in the Court of first instance along with the application for review of judgment, was produced before the District Judge. With regard to the back rent, the District Judge held that the plaintiff was bound to have his name registered precisely in the same way as for rent which bad accrued due in his time. We are now invited to set aside the order of the Court of first instance which has thus been affirmed by the District Judge. In our opinion the Court of first instance acted with material irregularity in the exercise of its jurisdiction.

2. After the objection, which was of an entirely technical and, as is plain on the facts of the present case, an unsubstantial character, had been abandoned, it should not have been allowed to be revived at the hearing to the detriment of the plaintiff. The provisions of Section 78 of the Land Registration Act were framed for the protection of the tenant, and the tenant is free to waive that benefit. It is also indispensable that if he does waive them, he cannot be permitted at his choice to resile from the position deliberately adopted by him. If this view were not taken, the gravest injury might be done to the plaintiff, as is illustrated by the very case now before us. The copy of the land registration decree has been produced before this Court, and there is no room for dispute that the plaintiff has complied with the requirements of the law. But with regard to the back rent the District Judge has taken an obviously erroneous view. The case of Sued Serapat Hossein v. Tarini Prosad Dobey 11 C. W. N. 141. shows that the provisions of Section 78 of the Land Registration Act have no application to the case of a person to whom rent has been assigned by a proprietor whose name has rot been registered under the Statute. In the case before up, the name of the vendor of the plaintiff was registered under the Land Registration Act. The plaintiff could not very well have been invited to do what was impossible, namely, to have his name registered in respect of the period during which he had no title and for which the name of his predecessor-in-interest' was registered in accordance with law. We must consequently hold that the suit should not have been dismissed for the reasons stated by the Court below. We may further point out, as has been repeatedly laid down [Alimuddin Khan v. Hira Lull Sen 23 c. 87; 12 Ind. Dec. (n. s.) 59 (F. B.)., Belchambers v. Natcab Sir Sped Hussain Ali Mirza Bahadur 2 C. W. N. 493 and Abul Khair v. Meher Ali 26 c. 712; 13 Ind. Deo. (n. s.) 1066 that it would have been sufficient for the plaintiff to prove during the trial that his name was registered subsequent to the institution of the suit. In the present oase, bis name was registered before the institution of the suit.

3. The result is that this Rule is made absolute, the decree of the Court below set aside and the oase remanded to the Court of first instanoe for re trial in the presence of both the parties. As the Rule has not been opposed, we make no order as to costs.

4. Rule made absolute; Case remanded.


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