ISWAR DAS Vs. ABHIRAM MOHANTY

JUDGEMENT

(1.) The appellants in these two appeals were the defendants in two suits (O. S. No. 93 of 1945 and O. S. NO. 94 Of 1945) which were heard analogously in the Court of the Munsif of Kendrapara. The plaintiff in both the suits was one Ataniram Mohanty, the respondent in these appeals. In O. S. No. 93/45 the property in dispute consists of l.OS acres of raiyati land appertaining khata No. 246. In O. S. No. 94/45 the property in dispute consists of. 22 acres appertaining khata No. 251. These khatas originally belonged to the recorded tenants Prabalad Das, Krushna Chan-dra Das, Bairagi Das & Nabani Bewa. The plaintiff-respondent Abhiram Mohanty claimed to have purchased the property from the recorded tenants by a Kabala dated 18-9-31. He, however, did not take the necessary steps prescribed in Section 31, Orissa Tenancy Act (as it stood before the amendment of 1938) lor the purpose of obtaining the consent of the landlord to the transfer and for getting his name mutated in the landlord's sherista. Consequently, whenever he paid rent for the two khatas the landlord granted Marfatdari receipt in the name of the recorded tenants showing, however, the plaintiff as the person who actually paid the money. In 1938, the Orissa Legislature passed the Orissa Tenancy (Amendment) Act, 1938 (Orissa Act 8 of 1938) by which old Section 31, Orissa Tenancy Act, was replaced by four new sections, namely, 30A, 31, 31A and 31B which had as their primary object the conferring of unrestricted right of transfer of occupancy holdings on raiyats and the providing of other consequential matters. In 1941, the landlord issued notice on the plaintiff-transferee calling upon him to pay the necessary mutation-fee required by subjection (1) of Section 31-B and threatening the transferee with suit if the money was not paid. The transferee, however, did not respond to this notice. Then the landlord in 1943-44 instituted two separate suits (R. S. No. 6300 of 1943-44 and R. S. No. 6297 of 1943-44) for arrears of rent in respect of the two khatas and impleaded as defendants only the recorded tenants and completely ignored the plaintiff-transferee. In due course, the holdings were put to sale and purchased by the appellants. The property covered by O. S. No. 93/45 was purchased in a rent sale on 14-6-44 and the property covered by O. S. No. 94/45 was purchased in a rent sale held on 30-11 44. The plaintiff thereupon instituted the suits under appeal alleging that the transfer of the holding in his favour was well-known to the landlord prior to the institution of the rent suits in question and that consequently the omission on the part of the landlord to implead him as a party in the suits had the effect of reducing the rent decrees to the position of mere money decrees. He, therefore, urged that the holdings were not properly represented before the rent Court and that consequently his right, title and interest were not affected by the rent sale. Both the Courts concurrently held that the landlord was fully aware of the transfer of the holdings in favour of the plaintiff by the recorded tenants and that the notice which the landlord himself issued to the plaintiff (ext. 7) on 26-11-41 calling upon him to pay the mutation-fee in respect of the transfer was conclusive on this question. They, therefore* hold that the holdings were not properly represented in the rent sale and that the plaintiff's interest was not affected by the sale.

(2.) The finding of both the Courts about the landlord's knowledge of the transfer in favour of the plaintiff is a finding of fact which is binding on me in the second appeal. The transfer had taken place as early as 1931. The transferee (the plaintilf) was regularly paying rent; but as he did not pay the necessary mutation- fee the rent-receipts were granted as Marfatdari receipts. On 26-11-41 (ext. 7) the landlord while calling upon the plaintiff to pay the necessary mutation-fee clearly stated that the plaintiff had purchased the property by a Kabala of 1931 and that he was in actual possession of the holdings since that. date. Hence, there can be no doubt about the fact that on the date of the issue of the notice (ext. 7 dated 28-11-1941) the landlord was fully aware of the transfer by the original recorded tenants in favour of the plaintiff. The question for decision, therefore, is whether three years later the landlord could obtain a valid rent-decree in a suit in which the plaintiff was not impleaded as a party.

(3.) Prior to 1938, the law was quite clear on the subject. Under Section 31 of the old Act no transfer of an occupancy holding was valid as against the landlord unless and until he gave his consent thereto and such consent was deemed to have been given if the necessary mutation-fee had been paid in the manner prescribed in that section. If such payment was not made or consent was not obtained the landlord was entitled to ignore the transfer altogether and proceed against the recorded tenant only for realisation of arrears of rent in the Rent Court and a decree so obtained would clearly be a rent decree. But by the amending Act of 1938 radical change was made in the law relating to transfer of occupancy holdings. By Section 30-A(1) such holdings were made freely transferable without the consent of the landlord and without payment of any fee to him. Doubtless, the amending Act would ordinarily be prospective and would apply to transfers made after the commencement of that Act. As regards pre- amendment transfers, however, the Legislature expressly inserted Section 31-B which is as follows :