ABDUL AZIZ Vs. KANTHU MALLIK

JUDGEMENT

(1.) We are invited in this Rule to set aside a decree by which the Court of appeal below in concurrence with the Court of first instance has dismissed a suit for rent. The plaintiff alleged that the disputed holdings are situated within Taluks Nos. 4424 and 4425, of which he is a part-proprietor; that on the 25 July 1892 and the 5 December 1893 the defendant executed two kabuliyats in his favour and was inducted into the land; that he consented to a decree for arrears for the year 1302, but that subsequently lie has attorned to one Mohinikanta and withheld rent for the years 1312 to 1314. The defendant resisted the claim broadly on the ground that the plaintiff had no title to the property, that he was not entitled to realise any rent, as his name had not been registered under Section 78 of the Land Registration Act, and that, in any event, as the defendant had paid rent to Mohinikanta, who had been duly registered, there was a complete defence to the claim of the plaintiff. The Courts below have held that Section 81 of the Land Registration Act, though it qualifies Section 78 of the same Act, has no application to a case under Section 60 of the Bengal Tenancy Act, and that consequently it is open to the defendant to prove payment of rent to the registered proprietor and to plead that the plaintiff has consequently no enforceable right as against him.

(2.) The plaintiff has assailed this decision on two grounds, namely, first, that as the defendant was inducted into the land by the plaintiff, on the principle of estoppel, embodied in Section 116 of the Indian Evidence Act, the defendant cannot question the title of the plaintiff, and is therefore bound to pay him rent; and, secondly, that Section 60 of the Bengal Tenancy Act is qualified by the provisions of Section 81 of the Land Registration Act, and that the before the defendant is not entitled to prove payment of rent to the registered proprietor.

(3.) In so far as the first of these contentions is concerned, it is obvious that there is no substance in it, because it is well-settled that there can be no estoppel against an Act of the Legislature. In support of this proposition, reference may be made to the decision of the Madras High Court in The Madras Hindu Mutual Benefit Permanent Fund V/s. Ragava Chetti (1895) I.L.R. 19 Mad. 200, where Mr. Justice Subramania Ayyar relied upon Barrow's Case (1880) 14 Ch. D. 432, and Fairtitle V/s. Gilbert (1787) 2 T.R. 169. To the same effect is the decision of this Court in Jagabandhu Saha V/s. Radha Krishna Pal (1909) I.L.R. 36 Cale. 920. See also the observations of Maclean C.J. in Jogini Mohan Chatterjee V/s. Bhoot Nath Ghosal (1903) I.L.R. 31 Cale. 146, 149 and of Baron Parke in Hill V/s. The Manchester and Salford Water Works Co. (1831) 2 B. & Ad. 544, 553 see, further, Doe V/s. Ford (1835) 3 Ad. & El. 649, Doe V/s. Howells (1831) 2 B. & Ad. 744, Gas Light Co. V/s. Turner (1840) Bing. N.C. 324, Doe v. Hares (1833) 4 B. & Ad. 435 and Glasgow V/s. Independent Co. (1901) 2 I.R. 279, 311. We are therefore not prepared to accede to the argument of the learned Vakil for the petitioner that the principle of estoppel overrides the provisions of either Section 78 of the Land Registration Act or Section 60 of the Bengal Tenancy Act. The first contention of the petitioner therefore fails.