SUJANSINGH Vs. SADASHEORAO DAMODHAR RAO

JUDGEMENT

(1.) NIYOGI , A.J.C. 1. One Chetu Patel sold a part of his absolute occupancy holding, in Mouza Dhekuwa, Khurai Tahsil, to the appellants, Sujansingh and others, on 1st April 1926, without the permission of the landlord. The landlord (plaintiff) applied to the revenue authorities for fixation of the value of the absolute occupancy right sold without permission, under Section 6, C. P. Tenancy Act (1920) and deposited Rs. 1,600 on 1st March 1928, which was the price fixed. He thereupon instituted a suit for what he described as mesne profits for the period intervening the date of the sale and his making the deposit of the price fixed by the Revenue Officer, namely, for the years 1926-27 and 1927, 28. The Court of first instance regarded the suit as one for damages for use and occupation, and passed a decree for Rs. 1S6-8-6, on the basis of the rental of the fields. The lower appellate Court affirmed the decree. The defendants have, therefore, preferred this appeal. It is strenuously contended for the appellants that the plaintiff (landlord) was not entitled to any compensation for the use and occupation of the, land, as the cultivating right did not vest in him until the date of his deposit, viz.; 1st March 1928. It is a common ground here that the landlord was not entitled to claim mesne profits as the defendants were not trespassers. It appears to me that the plaintiff would only have been entitled to compensation for any loss caused to him on account of his having been kept out of possession of the land, if he was entitled to it. The question is when does the right to obtain possession of the land accrue? Section 6 (6), C. P. Tenancy Act, runs as follows:

(2.) HAVING regard to the plain words of this enactment, there can be no basis for the contention that the landlord is entitled to possession prior to his making the deposit. The landlord not being entitled to possession could not logically suffer any loss by reason of the defendants' cultivation of the fields, before the date of the deposit. Defendants' entry on the land could hardly be treated as an invasion of the landlord's right as such a right was non-existent. It appears to me, therefore, that the landlord's suit, as framed, must fail. The Courts below, as well as the learned Counsel for the respondent relied on Raghoba v. Ragho (1901) 14 CPLR 129 and Lachman Rao v. Waman Rao (1903) 16 CPLR 1. In both these cases the landlord was given relief of compensation for the loss caused by the defendant's use and occupation of the land. In the first mentioned case, the argument that the transferee of the tenant was a trespasser, was repelled and it was held that he was not entitled to mesne profits, but in view of the transferee's willingness to pay the recorded rent for the two years of his possession, the claim was decreed as compensation for use and occupation. The last mentioned case was determined by the same Judge who decided the previous one. The learned Judge found that the landlord, not being entitled to possession until he avoided the transfer, could not strictly claim compensation for the loss caused by the transferee's use and occupation of the land; but he decreed the claim as the defendants had all along admitted their liability to pay the recorded rent. The position of an unauthorized transferee from the tenant is peculiar. If, as admitted, he is not a trespasser, I fail to see how the landlord could even claim compensation for use and occupation. The admission that the transferee is not a trespasser necessarily implies a negation of landlord's right to possession and, therefore, it must logically follow that he has no legal claim to compensation.

(3.) BUT a question may arise whether the landlord should be deemed to have ceased to be the landlord during this uncertain interval. It appears to me that the proper course for the landlord is to file a suit for rent against the tenant, since the original tenancy continues until the transfer is either confirmed in favour of the transferee by the landlord's failure to make the deposit, or the landlord himself acquires it by depositing the price. The landlord by his deposit would be deemed to derive his right not from the transferee, but from the transferring tenant. It would thus be evident that the transferee's position is neither that of a tenant nor of a transferee. He is not a tenant because of the absence of privity of contract between him and the landlord: not a transferee because the cultivating rights continue vested in the transferring tenant and did not pass to the landlord until the date of making up the deposit of the price. It appears to me, therefore, that the landlord's suit against the transferee is misconceived. The proper course ought to have been to sue the transferring tenant for rent. The lower appellate Court's decree is set aside and the appeal is allowed with costs in all the Courts.