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Harendra Nath Mitra and anr. Vs. Hossainali Sana and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1938Cal254
AppellantHarendra Nath Mitra and anr.
RespondentHossainali Sana and ors.
Cases ReferredSukh Chaud Haldar v. Jajneswar Mandal
Excerpt:
- .....48-h, ben. ten. act. the old section, namely section 85 (2) of the act was in these terms:a sublease by a raiyat shall not be admitted to registration if it purports to create a term exceeding nine years.4. if under the old law a sublease by a raiyat was registered in contravention of the provisions in this law, the sublease was void as against the landlord. this section has been repealed by the amending act of 1929 and section 48-h has been introduced. the relevant portion of this section is as follows:no lease to an under-raiyat for a term exceeding 12 years (not 9 years as laid down in the old law) shall be registered unless a landlord's fee, etc. is paid to the registering officer.5. the effect of this section is that if the sublease by the raiyat is registered in.....
Judgment:

Bartley, J.

1. This rule was issued calling upon the opposite party to show cause why an order made on appeal by the learned District Judge of Khulna dismissing the petitioner's suit should not be set aside. The petitioner claimed under Section 48H, Ben. Ten. Act, to recover the landlord's fee which had accrued on the transfer of the holding of an occupancy raiyat. The facts found were that Umasankar, an occupancy raiyat, holding under the petitioner, transferred a portion of his holding to the opposite party in this rule and that the transfer was an under-raiyati lease in spite of a misdescription in the potta to the effect that it was a raiyati lease. This document was however registered and the petitioner claimed to recover by a suit five times the rent payable under Section 48-H, Ben. Ten. Act. Both the Courts below agreed that the suit was not maintainable. It is against this order the petitioner obtained this rule.

2. In our opinion the decision of the Courts below was undoubtedly right. Section 48.H of the Act simply lays down that no lease to an under-raiyat for a term exceeding 12 years shall be registered unless proper landlord's fee is paid to the registering officer. In the present case the lease was registered without the payment of that fee in contravention of Section 48-H of the Act. The result of this non-payment of the land lord's fee was that the lease itself would be void as against the superior landlord. But the section does not entitle that superior landlord to sue for the unpaid landlord's fee. This view is in accordance with that taken in Sukh Chaud Haldar v. Jajneswar Mandal : AIR1932Cal135 . In the result this rule fails and is accordingly discharged.

Nasim Ali, J.

3. I agree. The learned advocate appearing on behalf of the petitioners contended that the suit was maintainable in the Civil Court, as for infringement of every right there must be a remedy. This argument however assumes that the plaintiffs have got a right to recover the landlord's fee in this case. A right is either a Common law right or a right acquired by contract or by statute. Admittedly this claim is not based on any contract. The argument of the learned advocate is that this right has been created by statute, namely Section 48-H, Ben. Ten. Act. The old section, namely Section 85 (2) of the Act was in these terms:

A sublease by a raiyat shall not be admitted to registration if it purports to create a term exceeding nine years.

4. If under the old law a sublease by a raiyat was registered in contravention of the provisions in this law, the sublease was void as against the landlord. This section has been repealed by the Amending Act of 1929 and Section 48-H has been introduced. The relevant portion of this section is as follows:

No lease to an under-raiyat for a term exceeding 12 years (not 9 years as laid down in the old law) shall be registered unless a landlord's fee, etc. is paid to the registering officer.

5. The effect of this section is that if the sublease by the raiyat is registered in contravention of the provisions of this section, the sublease itself becomes void. Would this however enable the landlord of the raiyats to claim the landlord's fee under Section 48-H? The answer must be in the negative. By Section 65, Contract Act, when an agreement is discovered to be void or when a contract becomes void any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it to the person from whom he received it. The present case does not come under that section. The defendant did not receive any benefit from the plaintiffs nor did he receive any advantage from the plaintiffs. In fact his sublease becomes void and is not binding on the plaintiffs. Section 48-H was enacted to penalize a sublease in excess of 12 years unless a certain amount was paid to the superior landlord. It was never intended to create any right in favour of the superior landlord when the sublease becomes void and affords no protection to the under- raiyat from eviction by the superior landlord when he becomes entitled to re-enter the occupancy holding after the right of the occupancy raiyat is extinguished.

6. The learned advocate for the petitioner however argued that even if this right was not accrued by Section 48. H, Ben. Ten. Act, it was accrued by the general law. Evidently by ' general law' he means general principle of law. But the learned advocate did not cite any principle which would support a claim like this. The superior landlords in the present case have absolutely no right to claim the landlords' fee in view of the events that have happened in the present case.


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