JOHAR MULL BHUTRA Vs. BHUPENDRA NATH BASU

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for recovery of arrears of rent of a tract of homestead land. The rent is claimed at the rate of Rs. 7-6 annas 12 1/2 gandas per annum for the years 1318 to 1320 B S, and for the first nine months of the year 1321 It is not disputed that Sri Narain Santra, Jagan Nath Santra, Raj Narain Santra and Deb Narain Santra were owners of the disputed land in equal shares. There is also no controversy that the contesting defendants held the land as tenants under the Santras at the rate of rent mentioned in the plaint. The plaintiffs claim to have derived title from the Santras, as to one halt of the property, under a conveyance dated the 3 August 1911, and as to the ether half, under a permanent lease dated the 15 February 1907. The defendants resisted the claim on a three- fold ground, namely, first, that the alleged title of the plaintiffs as purchasers was inoperative, because the interest of their vendors had passed away to strangers before the date of their conveyance; secondly, that the alleged title of the plaintiffs as tenure-holders was inoperative, because the defendants had obtained a conveyance of the identical share from the Santras before the lease to the plaintiffs and, thirdly, that if the title of the, plaintiffs was found to have been subsisting at the date of the suit and the title of the defendants was negatived, the plaintiffs were still not entitled to realise rent from the defendants, as both of them held as tenants of co-ordinate rank under the Santras. The Trial Court found partially in favour of the plaintiffs and decreed the suit to that extent. On appeal, the Subordinate Judge has reversed this decision. On the present appeal, the following points have emerged for consideration from the arguments addressed to us; first, did the plaintiffs acquire the title of the Santras as to one-half of the land, under their conveyance dated the 3 August 1911, secondly, did the plaintiffs acquire, under their permanent lease from the Santras dated the 15 February 1907 such an interest in the other half of the land as must have priority over the interest acquired by the defendants under their conveyance from the Santras dated the 25 April 1910; thirdly, does the relationship of landlord and tenant exist between the parties, in view of the nature of the lease-hold interest created by the Santras in favour of the plaintiffs under the lease dated the 15 February 1907, and the character of the tenancy of the defendants which is alleged to have been held under the Santras at a uniform rate of rent since at least 1854.

(2.) As regards the first question, there is no room for controversy that the plaintiffs did not acquire the title of the Santras in one-half of the land under their purchase dated the 3rd August 1911. It appears that the interest of their vendors had been sold away in execution proceedings on the 17 June 1898 and the 17 March 1899. At the time of the sale by the Santras to the plaintiffs on the 3 August 1911, they had no title to convey Consequently, on the most favourable view of the case, the claim of the plaintiffs for recovery of arrears of rent cannot possibly be sustained in excess of a half share.

(3.) As regards the second question, it is plain that the defendants did not, under their conveyance from the Santras, dated the 2 February, 1910, acquire a title which could prevail over that of the plaintiffs. It appears that on the 15 February 1907 two of the Santras granted a mourasi mokarari lease to the plaintiffs in respect of all their properties in the village of Santragachi, for a premium of Rs. 17,800 at an annual rent of Rs. 1,200. Eighty-five parcels were specified in the Schedule and it was expressly stated that if there after any other parcel of land, was discovered to have been omitted by mistake a supplementary deed would be executed in respect thereof. The contingency contemplated happened. It was discovered that the tenancy now in dispute had been left out by mistake from the list of mourasi mokarari tenancies in the Schedule to the lease. The Santras, however, failed to execute the requisite supplementary deed in the terms of their agreement. The result was that on the 8 July 1909, the plaintiff sued the Santras to enforce specific performance of the agreement. That suit was decreed on the 20 April 1910. It was during the pendency of this litigation that the Santras gold away their interest on the 2 February, 1910 to the present defendants, it is manifest that the defendants were purchasers pendente lite and the interest they purchased was bound by the decree in the suit for specific performance. It was ruled by this Court in the case of Moti Lal Pal V/s. Preo Nath Mittra 3 Ind. Cas. 696 : C.L.R.J. 96 : 13 C.W.N. 226 that a suit for specific performance of a contract for transfer of immoveable property operates as lis pendens, in other words, in a suit against the vendor of real estate for specific performance, his conveyance of the legal title after suit was brought would not suspend the proceeding or defeat the title under the decree of the Court, The obvious reason for this is that if when the jurisdiction of the Court has once attached, it could be ousted by the transfer of the defendant 's interest, there would be no end to litigation and justice would be defeated. Consequently, when such a suit for specific performance is ended by a final decree transferring the title, that title relates back to the date of the agreement on which the suit is based, and the Court will not permit its decree to be rendered nugatory by intermediate conveyances. The same view was adopted in the case of Pramatha Nath Roy V/s. Jagannath Kishore Lal Singh 16 Ind. Cas. 359 : 17 C.L.J. 427. There is consequently no escape from the position that the title of the plaintiffs which was established by the decree made in their favour in the suit for specific performance relates back to the 15 February 1907, the date of the mourasi mokarari lease granted to them by the Santras. The inference follows that the conveyance taken by the defendants from the Santras on the 2 February, 1910, does not afford them effective protection against the claim of the plaintiffs based on their leasehold title dated the 15th February 1907.