HIRDAY NARAYAN SINGH Vs. JANG BAHADUR SINGH

JUDGEMENT

(1.) The question to be examined in this appeal is whether the plaintiff obtained a valid title to the property in dispute as soon as the husband of defendant 2nd party executed a registered kebala in his favour, though the fee prescribed to the landlord was not paid to the registering officer at the time.

(2.) The leading facts of the case are as follows. The plaintiff brought the suit alleging that on 19th December 1938 the husband of defendant 2nd party executed a registered kebala with respect to 9 Kathas and 13 dhurs of Plot No. 244, Kharta No. 115, village Madhepura. The plaintiff asserted that he paid landlord's fee but defendants first party did not accept rent since salami was not paid by the plaintiff. In 1941 defendants first party instituted a rent suit against the original tenant and having obtained an ex parte decree purchased the holding in execution case and obtained delivery of possession in due course. The plaintiff claimed that the decree in the rent suit had only the effect of a money decree since the holding was not properly represented. The plaintiff hence brought the suit for a declaration of title and recovery of possession of the land. Defendants first party contested the suit on the ground that the landlord's fee was not paid at the time when the kebala was registered and in consequence the plaintiff acquired no title and was not a necessary party in the rent suit. Defendants first party maintained that the decree obtained in the rent suit had the effect of a rent decree and the plaintiff was not entitled to any relief. After examining the evidence the learned Munsiff held that the landlord's fee had not been paid, out the plaintiff was nevertheless entitled to a decree. His decision has been reversed by the Additional District Judge of Monghyr in appeal.

(3.) In support of this appeal, Mr. K. K. Sinha addressed the argument that the lower appellate Court was erroneous to hold that the decree obtained in the rent suit had the effect of a rent decree and that the defendants first party obtained a valid title to the land by sale in execution case. Learned Counsel did not properly impeach the finding of the lower appellate Court that the landlord's fee was not paid since this finding was upon a question of fact. But the learned Counsel maintained that upon proper construction of Section 26-A, Sub-section (2) read with Sections 11 and 12 of the Bihar Tenancy Act the lower appellate Court ought to have held that though the landlord's fee was not paid the plaintiff acquired a valid title to the land as soon as the sale-deed was registered. In my opinion the argument addressed by the learned Counsel is well-founded and must succeed. The new Section 26-A of the Bihar Tenancy Act was substituted in place of the former Section 26-A by Bihar Act II of 1938 which came in force on the 10th December 1928. The amended Section 26-A, Clause (2) is to the following effect: