SUKH CHAND HALDAR Vs. JAJNESWAR MANDAL

JUDGEMENT

(1.) This rule has been issued calling upon the opposite parties to show cause why the decision of the Small Cause Court Judge dismissing the suit brought by the petitioners in the Small Cause Court for recovery of Rs. 120 as unpaid landlord's fee under Section 48-H, Ban. Ten. Act, should not he set aside. It appears that defendant 5 had granted an under-raiyati lease for a period exceeding 12 years to defendants 1 to 4 and had the lease registered on the statement that his status was that of a raiyat at a fixed rate of rant. The lease was therefore apparently registered under Section 12, Ban. Ton. Act. The petitioners claim that in fact the defendants status was that of under-raiyats and therefore registration under Section 48 (H), Ben. Ten. Act, was necessary and that they are entitled to a decree for Rs. 120 claimed as landlords fees. The learned Subordinate Judge states that the facts of the case are not in dispute, that the plaintiffs are under-raiyats with a right of occupancy and that defendant 5 holds directly under them as an under-raiyat with a right of. occupancy and has admittedly granted a sublease to defendants 1 to 4.

(2.) In support of the decision of the Court below it has been urged in this rule that in any case the suit would not lie because a question of status was raised and that therefore the suit would not lie under the Small Cause Courts Act and that a suit under the ordinary procedure should have been brought. But in view of the admission of the parties in suit there seems to be no question of status as it appears that the contesting defendant admitted that the lease was granted to him by defendant 5 as an under-raiyat and he makes no claim that the lease was granted by him as a raiyat. It appears therefore that in fact the registration should have been made under Section 48 (II), Ben. Ten. Act. The question then remains as to whether the plaintiffs are entitled to recover the amount claimed as landlords fees. Under Section 48 (H) no lease to an under-raiyat can be registered without payment of the process-fee for service of notice upon the landlord and in this case no process-fee was paid.

(3.) Apparently, in the lease the landlord described himself as a raiyat at a fixed fate of rent and this would possibly account for the registration of the document. But I find nothing as regards Section 43 (H) corresponding to the provisions of Section 26 (J) as regards recovery of landlords fees in ease of registration under Section 26 (c) and (e). It is argued by analogy with the provisions of Section 26 (J) that the landlord should be entitled to recover the [balance of the landlord's fee in this case by a suit. It appears to me however that had it been the intention of the legislature that in such a case the landlord would be entitled to recover his fees, some provisions would have been made in the Act itself. The effect, as things stand at present, of illegal registration without payment of the landlord's fee will be that the lease will have no effect (as against the landlord. I think therefore that the Court below was correct in finding that the suit was not maintainable.