1. This is an appeal by the plaintiff in a suit for recovery of arrears of rent. The trial Court decreed the claim in fall; the lower Appellate Court has reduced the amount by one hair.
2. The plaintiff seeks to recover arrears of rent as transferee of a usufructuary mortgage from the proprietor, who had previously granted a putni lease to the first defendant. The tenant resists the claim on the ground that under Section 78 of the Land Registration Ant, the plaintiff is not entitled to rent in excess of the share for which he has registered his name in the Collectorate. This raises three questions; first, is the amount claimed 'rent' within the meaning of Section 78; secondly, is the plaintiff 'mortgagee' within the meaning of that section; and thirdly, is the plaintiff entitled to the benefit of Section 81
3. As regards the first point, the plaintiff contends that the amount he seeks to recover is described as 'malikana' in the putni lease, and cannot consequently be regarded as 'rent' within the meaning of Section 70, on the authority of the decision in Syed Shah Najamuddin Hyder v. Syed Zahid Hussein 8 C.L.J. 300. That decision is of no assistance to the plaintiff. It was there ruled that Section 78 of the Land Registration Act is no bar to the recovery of malikana, which is not 'rent.' The malikana claimed in that suit fell within the description given by Sir Barnes Peacock, C.J., in the case of Bhuli Singh v. Musammat Nimu Behu 4 B.L.R.A.C. 29 : 12 W.R. 498, namely, the amount of profits of an estate payable to the proprietor who has been deprived of possession by the Government by reason of his neglect or failure to come in and take settlement. Here the sum recoverable by the plaintiff is, no doubt, described in the putni lease as; malikana, but the lease shows that it was in essence rent and was made expressly recoverable by the summary procedure prescribed in the Putni Regulation of 1819. The first question must accordingly be answered against the appellant.
4. As regards the second point, there is no room for controversy that the plaintiff is a mortgagee. The proprietor executed a usufructuary mortgage in favour of the vendor of the plaintiff and the conveyance which is the foundation of his title shows that he has purchased the interest of the usufructuary mortgagee. The second question also must be decided against the appellant.
5. As regards the third point, the plaintiff relies upon Section 81 of the Land Registration Act, which is in there terms: 'Nothing contained in the three last preceding sections shall be held to interfere with the conditions of any written contract or to prevent any person deeming himself entitled to any sum of money, from recovering such sum by due process of law from any other person who has received the same.'
6. Now the 'written contract' mentioned in Section 81 refers obviously to a contract between the person who claims rent as proprietor and the person who is bound to pay the rent to him under Section 78 [Bhugwan Das v. Raghunath Sahai 6 Ind. Cas. 563 : 11 C.L.J. 477]. In the case before us, there is no written contract of tenancy between the defendant and the plaintiff. There is no doubt a written contract between the defendant and the proprietor from whom the plaintiff claims to have derived title as usufructuary mortgagee. A case of this description does not, in our opinion, fall within Section 81, which is consequently of no avail to the plaintiff.
7. The result is that the decree made by the Subordinate Judge is affirmed and this appeal dismissed with costs.