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Niladri Mahanti Vs. Bichitranand Roy - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1910)ILR37Cal823
AppellantNiladri Mahanti
RespondentBichitranand Roy
DispositionAppeal allowed
Cases ReferredKristo Chunder Ghose v. Raj Kristo Bandyopadhya
Excerpt:
under - tenure, sale of--execution sale--effect of sale of under-tenure by co-sharer landlord for arrears of rent--non-registration of purchase in execution sale by the whole body of landlords--locus standi to maintain a suit--rent recovery act (x of 1859) sections 27,105, 106, 108,109 and 110--civil procedure code (viii of 1859) section 259--landlord and tenant procedure act (beng. viii of 1865). - .....who may have been declared the purchaser at such sale, to the effect that he has pur chased the right, title and interest of the defendant in the property sold, and such certificate shall be taken and deemed to be a valid transfer of such right, title and interest.' that section is clearly one of those which would certainly be part of the law for the time being in force applicable to the sales of under-tenures for demands other than those of arrears of rent, so that this section indicates what would at that time have passed to a purchaser in the case of a sale in execution of a decree for money due on account of a share of rent. the distinction, therefore, between that which passes on a sale on a decree under section 105, and that on a decree under section 108, is manifest. the matter.....
Judgment:

Lawrence H. Jenkins, C.J.

1. This appeal arises out of a suit brought by the plaintiffs to recover possession of certain land which they claim to be their under-tenure. The Munsif passed a decree in the plaintiff's favour. This was reversed by the lower Appellate Court; and, on appeal to this Court, Mr. Justice Brett has confirmed the decree of the lower Appellate Court. The present appeal is from Mr. Justice Brett's judgment under Section 15 of the Letters Patent.

2. The facts which have given rise to this suit can be briefly stated. The plaintiffs, on the 14th October 1901, purchased the land in suit from defendant No. 9, who himself purchased the under-tenure, of which this land forms part, on the 15th of December 1900 at a sale held in execution of a money-decree passed against defendant No. 1 and the father of defendant No. 2. On the 28th of January 1902, the under-tenure was again put up to sale in execution of a decree against defendants Nos. 1 and 2 obtained by defendants Nos. 4 to 8, who were sharers in the estate to the extent of 8 annas, and claimed in the suit their share of the rent. At that sale defendant No. 3 purchased, and on the 17th of July 1902 he took possession of the property, and thereby, it is said, dispossessed the plaintiffs and their vendor, defendant No. 9. The plaintiffs claim that defendant No. 3 took nothing by his sale as against them, inasmuch as the decree was not a decree for rent, but was a decree for money due on account of a share of the rent of the under-tenure.

3. The answer made on behalf of defendant No. 3 is that the plaintiffs cannot be heard to advance this contention because they have no locus standi, whatever that may mean, inasmuch as the transfer to their vendor as well as to themselves has not been registered in the manner contemplated by Section 27 of Act X of 185.9. This view has found favour with the lower Appellate Court and with Mr. Justice Brett. The question is whether it can be sustained.

4. Now, it is to be noticed that the sale to defendant No. 3 was not under Section 105 of Act X of 1859, but under Section 108, and the distinction is vital. Thus, Section 105 contemplates a decree for an arrear of rent due in respect of an under-tenure, and, further, it contemplates that it should be a decree by the landlord, or the whole body of landlords, for the entire rent. The consequence of such a decree is that what is brought to sale is 'the tenure..., according to the rules for the sale of under-tenures for the recovery of arrears of rent due in respect thereof,' an expression which was held by the Privy Council in Brindabun Chunder Sircar Chowdhry v. Brindabun Chunder Dey Chowdhry (1874) 13 B.L.R. 408; L.R. 1 I.A. 178 to refer to the rules contained in Regulation VIII of 1819 and I of 1820 when Act X of 1859 was passed. Since 1865 these sales have been regulated by Act VIII of 1865 (B. C). Turning on the other hand to Section 108, what is there contemplated is not a decree for an arrear of rent, but a decree for money due on account of a share of rent, and not a suit brought by the landlord or the whole body of landlords, but by a sharer in a joint undivided estate, and it is from the failure to observe the distinction between Section 105 and the clauses which are its proper sequel on the one hand, and Section 108 and those that amplify it on the other, that the difficulty in this case has arisen. The sale on which defendant No. 3 in this case relies was in execution of a decree under Section 108, and it is necessary to see what precisely Act X of 1859 provides in relation to such a decree and its execution. It provides that the under-tenure may be brought to sale in execution of the decree in the same manner as any other immoveable property may be sold in execution of a decree for money under the provisions of Sections 109 and 110. Section 109 imposes conditions precedent to the right of the decree-holder to apply for execution against any immoveable property belonging to the debtor. We have no concern with those conditions in this case, because no point has been made with reference to this matter in the lower Courts. Section 110 provides that if, as is the case here, the property be a saleable under-tenure, it shall be sold under the provisions of law for the time being in force applicable to the sale of such under-tenures for demands other than those of arrears of rent due in respect thereof. When Act X of 1859 came into operation, the law for the time being in force was Act VIII of 1859 which, in Section 259, provided that, 'after a sale of immoveable property shall have become absolute in the manner aforesaid, the Court shall grant a certificate to the person who may have been declared the purchaser at such sale, to the effect that he has pur chased the right, title and interest of the defendant in the property sold, and such certificate shall be taken and deemed to be a valid transfer of such right, title and interest.' That section is clearly one of those which would certainly be part of the law for the time being in force applicable to the sales of under-tenures for demands other than those of arrears of rent, so that this section indicates what would at that time have passed to a purchaser in the case of a sale in execution of a decree for money due on account of a share of rent. The distinction, therefore, between that which passes on a sale on a decree under Section 105, and that on a decree under Section 108, is manifest. The matter is brought out with clearness by their Lordships of the Privy Council in Doolar Chand Sahoo v. Lalla Chabeel Chand (1878) L.R. 6 I.A. 47, 51; 3 C.L.R. 561, where it said--'Now it is clear that in attaching the property of a judgment-debtor, whether in an under-tenure or in an ordinary leasehold interest, under Act VIII of 1859, you can only attach and sell the right, title and interest of the judgment-debtor; but if you proceed to sell a tenure under Section 59 of Act VIII of 1869, then you sell the tenure; and by virtue of Section 66 of the same Act, the purchaser, under the provisions of Sections 59 and 60 of the Act, acquires it free of all incumbrances which may have accrued thereon by any act of any holder of the said under-tenure, his representatives or assignees, unless the right of making such incumbrances shall have been expressly vested in the holder by the written engagement.' So that it may, I think, fairly be said that while under Section 105, which is the equivalent of Section 59 of Act VIII of 1869, the tenure would be sold under Section 108, it is only the right, title, and, interest of the judgment-debtor in the under-tenure that would pass. That is how the matter stood in 1859; but ever since then it has been the accepted doctrine that all that a purchaser would take at a sale in execution under the several successive Codes of Civil Procedure would be the right, title and interest of the judgment-debtor. The same view receives the sanction of the Full Bench in Shamchand Kundu v. Brojonath Pal Chowdhry (1873) 12 B.L.R. 484; 21 W.R. 94. I refer in particular to the remarks made by Mr. Justice Jackson in the course of his judgment. If, then, the matter stood there, we should have this position, that all that defendant No. 3, the purchaser at the subsequent execution sale, would get would be the right, title and interest of the judgment-debtor at that time; in other words, he would get nothing so far as the land in suit is concerned, because, before that execution purchase, the property had passed successively to defendant No. 9 and the present plaintiffs.

5. It is next said that the plaintiffs cannot rely on the title so acquired, or, as it has been expressed, that he has not got a locus standi. I view the expression locus standi with some apprehension, because I do not pretend to know what it precisely means in this connection. Does it mean that defendant No. 9 and the plaintiffs acquired no title because there was no registration? If that be the contention, then there is a complete answer to this view in the decision of Mr. Justice Wilson and Mr. Justice Beverley in Kristo Chunder Ghose v. Raj Kristo Bandyopadhya (1885) I.L.R. 12 Calc. 24, and of the Privy Council in Luckhinarain Mitter v. Khettro Pal Singh Roy (1873) 13 B.L.R. 146, 156, 20 W.R. 380, where, in regard to the effect of similar provisions in Regulation VIII of 1819 for registration of transfer of tenures in the zemindar's sherista, their Lordships say--'The plaintiffs were assignees of the darpatni talook, and though the transfer was not registered, they had the right and were compelled to deposit the amount of rent due to the zemindar in order to protect their own interest.' If, on the other hand, it is meant that the plaintiffs have no right to sue, then this contravenes the general principle that a man in possession of property lawfully acquired by him, but invaded by another, has a right to sue in respect of trespass on it. Whether he will succeed or not is a different question; but the mere fact that he does not succeed does not mean that he has no locus standi. I can understand its being said that a person has no locus standi where the Legislature in effect so provides, as, for instance, in Section 106 of Act X of 1859, which is limited in its operation to sales under Section 105 of transferable tenures in execution of decrees for arrears of rent. It is there provided that while third parties claiming to be the lawfull possessors of the under-tenure may apply for stay of sale and enquiry, no transfer of the under-tenure, which by the provisions of the Act or any other law for the time being in force is required to be registered in the sherista of the zemindar or superior tenant; should be recognized, unless it has been so registered, or unless sufficient cause for non-registration be shown to the satisfaction of the Collector. This is a distinct provision of the law that, notwithstanding the title acquired by transfer, it shall not be recognised for the particular purpose contemplated by that section. But the present suit is not one which comes within Section 106, and there is no similar provision in relation to a sale under Section 108, so that the contention that the present plaintiffs have no locus standi is not one that can properly be applied to the circumstances of this case. But it is contended that there are two decisions of this Court by which we are required to hold that the plaintiffs have no locus standi. No doubt it was decided in Patit Shahu v. Hari Mahanti (1900) I.L.R. 27 Calc. 789, that plaintiffs who had not registered their names in the landlord's sherista had no locus standi for the purposes of that suit. But the learned Judges based that proposition solely on the case to which I have referred of Shamchand Kundu v. Brojonath Pal Chowdhry (1873) 12 B.L.R. 484; 21 W.R. 94, which was a case that turned upon Section 105 of Act X of 1859, and not upon Section 108, and in which, as I have already remarked, the distinction between Sections 105 and 108, and the consequence of those sections, have been noticed by one of the learned Judges who was a party to the decision. What the facts were which the Court in Patit Shahu's case (1900) I.L.R. 27 Calc., 789 accepted as facts for the basis of their decision is not clear, but, as far as I can see, the learned Judges in that case did not base their decision on the view that the decree was obtained by one who was a co-sharer; and the language of their judgment is equally consistent with their having supposed that the landlord on whose decree the sale was obtained was the sole landlord. If he was regarded by them as the sole landlord, then the case is no authority for the position with which we have to deal. If they did not so regard him, then it appears to me that they failed to observe the sharp distinction drawn by the(Legislature, as also the decision of Mr. Justice Wilson, in the case of Kristo Chunder Ghose v. Raj Kristo Bandyopadhya (1885) I.L.R. 12 Calc. 24 and of the Full Bench decision in Shamchand Kundu v. Brojonath Pal Chowdhry (1873) 12 B.L.R. 484; 21 W.R. 94. The other case, to which our attention has been invited, is that of Bichitrananda Roy v. Behari Lal Pandit (1906) 5 C.L.J. 89. That case proceeds upon the view that the plaintiff had no locus standi. I have already explained my difficulties with regard to that proposition, and I cannot suppose for a moment that the learned Judges in that case intended to come to a decision which was opposed to the view expressed by the Full Bench, or to the actual decision in Kristo Chunder Ghose v. Raj Kristo Bandyopadhya (1885) I.L.R. 12 Calc. 24. The fact is that the decision in Kristo Chunder Ghose's case (1885) I.L.R. 12 Calc. 24 is undistinguishable from the present but for the fact that it proceeded upon Act VIII of 1869, whereas in this case we are concerned with Act X of 1859. But that is merely a difference of name. The provisions of the law in the two cases are substantially the same, and there is no fair distinction that can be drawn for the purposes with which we are now concerned, between the present case and that in Kristo Chunder Ghose v. Raj Kristo Bandyopadhya (1885) I.L.R. 12 Calc. 24.

6. The result, therefore, is that, holding as we must on the plain words of the Act, and also on authorities to which I have adverted, that the plaintiffs acquired a title notwithstanding the absence' of registration, and, further, that all that defendant No. 3 took was the right, title and interest of the judgment-debtor, which at that date was nothing so far as concerns the property now in suit, it necessarily follows that the plaintiffs are entitled to the relief they ask of possession as against defendant No. 3.

7. We must, therefore, set aside the judgment of Mr. Justice Brett and of the lower Appellate Court, and restore the decree of the Munsif with costs throughout.


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