SUBODH CHANDRA DAS Vs. PANCHU KHAN

JUDGEMENT

(1.) This is an application made by the Opposite Party (tenant) to an application made by a purchaser from the transferee of a usufructuary mortgagee from the under-tenant. The petitioner be-iore us was the tenant Of a holding No. 10 situate in a certain village. One Qurban Khan was recorded in the record-of-rights as an under-tenant. Qurban Khan executed a usufructuary mortgage in favour of one Haru Sah sometime in the year 1934. This usufructuary mortgagee transferred his interest to the Opposite Party Panchu Khan by a sale deed duly registered on 6-7-1948. Panchu Khan made an application under Section 61, Bihar Tenancy Act, for permission to deposit the rent in favour of the petitioner and for receipt being granted for the same by the Court. The Court below acting under Section 62, Bihar Tenancy Act, held that the applicant Panchu Khan as mortgagee from a tenant was entitled to make deposit and directed a receipt to be granted for the rent deposited by the applicant. The petitioner contends that even though the applicant may hold the position of a mortgagee from an under-tenant he is not the mortgagee of the holding of a tenant and, therefore, he is not entitled to make the deposit under Section 61. Relevant portion of Section 61 runs as follows:

(2.) In the result, I would set aside the order of the learned Munsif dated 22-9-1951 and allow the application with costs. Hearing fee one gold, mohur.

(3.) In view of the definitions, given under the Bihar Tenancy Act of the different words which have been used therein, there is no escape from the conclusion that a mortgagee from an under-raiyat has got no right to him for the deposit of rent under Section 61 of the Bihar Tenancy Act. I entirely agree with my learned brother that the view taken by the lower Court was wrong and that the application has to be allowed with costs.