GEYANCHAND SUCHANTI Vs. BUDHAN MAHTON

JUDGEMENT

(1.) This is a second appeal by the plaintiff in a suit which was decreed by the trial Court but has been dismissed on appeal. The facts of the case are quite simple. It appears that in 1927, defendant 10 Deodutta Tewari, who is the trustee and shebait of a deity, gave in thika mauza Jahanabad Nisf to defendant 1, Budhan Mahto, for the years 1388 to 1346. The document which embodied this transaction provided that a sum of Rs. 1167-11-6 would be payable as rent by the lessee to the lessor. On 15 December 1933, Deodutt executed a thika-patta in favour of the plaintiff by which he assigned his rights of receiving rent from defendant 1 for the years 1341 to 1346. On the strength of this patta the plaintiff, brought the present suit for the realisation of the rent for the years 1343, 1344 and eight annas kist of 1345 against defendant 1 and other members of his family who were joint with him. The defendants raised a number of pleas all of which have been negatived excepting one which was given effect to by the lower appellate Court with the result that the suit has been dismissed. The plea was that the plaintiff is not entitled to recover rent because his name is not registered under Bengal Land Registration Act (7 of 1876); in other words, the plea was that Section 78, Bengal Land Registration Act, is a bar to the suit. Section 78 provides among other things that no person shall be bound to pay rent to any person claiming such rent as proprietor or manager of an estate or as mortgagee unless the name of such claimant shall have been registered under this Act. It is contended that the thika- patta which was executed by Deodutt in favour of the plaintiff was in fact a mortgage deed and the plaintiff: being a mortgagee was not entitled to recover rent, unless he was duly registered under the Act. The trial Court held that Section 78 could not bar the plaintiff's right to recover rent inasmuch as the plaintiff was not a usufructuary mortgagee but only a lessee. The learned District Judge on appeal has quoted certain provisions of the patta to show that in fact the document in question is a mortgage deed and the suit is hit directly by Section 78.

(2.) Now, it appears that the attention of the Courts below was not drawn to Section 81, Bengal Land Registration Act. Section 81 provides among other things that nothing contained in Section 78 and the next two sections shall interfere with the conditions of any written contract. Relying upon this section a Bench of the Calcutta High Court held in Bhugwan Das V/s. Raghunath Sahai (1910) 11 C.L.J. 477 that a landlord who has not had his name registered under the Land Registration Act is not precluded from recovering rent from his tenant who has taken a lease of the land in writing, which document contains a contract to pay rent. Mr. Nawal Kishore Prasad, who appeared for the respondent, challenged the correctness of this decision but in my opinion there can be no doubt that the view taken therein was absolutely correct. A mere reference to the language of Section 81 would show that it was meant to control Section 78 as well as Secs.79 and 80. It is manifest that where there is a written contract showing that a certain party is liable to pay rent, that person cannot very well say that notwithstanding the contract he is not so liable and the Legislature has simply given effect to this principle by enacting Section 81. Therefore Section 81 would clearly operate as between persons who are themselves parties to the contract. But then it is contended that in the present case it cannot be availed of by the plaintiff because the contract was between defendant 1 and Deodutt and not between defendant 1 and the plaintiff. It was held in Prabodh Chandra V/s. Harish Chandra Naskar A.I.R. 1921 Cal. 145 that an ijaradar is entitled to institute a suit for the entire rent upon a written contract which had been executed by the tenant in favour of his lessor alone, and without reference to the latter's cosharer whose name had previously been registered in respect of an eight annas share.

(3.) That case was approved and followed by a Bench of this Court in Deonandan Prasad Singh V/s. Girdhar Prasad A.I.R. 1939 Pat. 272. The facts of this last case were briefly these: July 1929, the defendants second party granted a usufructuary mortgage to the plaintiff and on the same day the mortgagees executed a lease whereby the mortgagors became their tenants at a certain annual rent. In 1931, the 0 defendants second party by a registered document assigned their lease to the defendants first party who gave notice of the assignment to the plaintiffs. Subsequently the plaintiff's instituted a suit claiming arrears of rent from the defendants first party who pleaded among other things that the plaintiffs not being registered could not recover rent under Section 78, Land Registration Act. The plaintiffs met this contention by relying on Section 81, Land Registration Act, and this Court gave effect to their contention and pointed out that it was sufficient if there was a contract entered into between the predecessors of the parties or the successors of one of the parties and another original party. In my opinion, the principle laid down in that case will govern the present case also. It was contended on behalf of the respondents that in the case to which reference had been made the plaintiff was a mere lessee and not a mortgagee and therefore that case has no application to the present case. It is, however, quite clear that their Lordships who decided the case did not decide it on the ground that the plaintiff was a mere lessee and was therefore not hit by Section 78, Registration Act. On the other hand, they based their decision upon the view that even though he may be one of the persons required to be registered under Section 78, he was fully protected by Section 81. It is to be noticed that all that Section 81 provides is that nothing contained in Section 78 and the next two sections shall be held to interfere with the provisions of any written contract; it does not say that the written contract must be between the plaintiff and the defendant in a rent suit.