RADHAKRISHNA PAIK Vs. SANA ROUT

JUDGEMENT

(1.) This is an appeal by the defendant who is aggrieved by the decision of the learned Subordinate Judge dated 19 November 1938, by which he reversed the decision of the learned Munsif in a suit for recovery of possession of certain lands on the following allegations. The plaintiffs purchased 74 acres of land including the disputed land from one Chandrabitiaria who was an occupancy tenant. No sale deed has been produced probably because under Section 46 (5), C. P. Tenancy Act, the Registration Officer was not empowered to register this kebala. The purchase is said to have been made in the year 1929 or thereabout. The plaintiffs urged that they were recognised by the landlord and they were in possession till they were dispossessed in June 1936 by the defendant. The defence to the action was that the defendant is the recorded tenant of the land in suit and is in possession of the land since 1933; that the land in suit belonged to the defendant's father and during his minority it was transferred without any authority by the uncle of the defendant. The trial Court came to the conclusion that the plaintiffs have title to the land because the sale was recognised by the zamindar of Khariar who has been receiving rent from the plaintiff for a number of years. But he held that the plaintiff was dispossessed in 1933-34 and not 1986 and, therefore, the suit instituted on 15 January 1937, wa3 barred by Schedule 2, C. P. Tenancy Act. The plaintiff appealed to the Subordinate Judge who came to the conclusion that the disputed land was purchased by the plaintiffs ten years ago and the landlord has recognised the transfer. The learned Judge felt the force of the criticism that no sale deed had been produced and therefore he gave an alternative finding that even if it is assumed for a moment that the plaintiff cannot claim any valid title to the holding on the strength of the sale deed for want of registration, the defendant cannot impeach his title because the transfer has been recognised by the landlord, and the plaintiff had been in possession for ten years on payment of rent. With regard to the date of dispossession by the defendant, the learned Subordinate Judge came to the conclusion that the defendant cultivated the land forcibly in June 1936, and, therefore, the suit was well within time. Accordingly he allowed the appeal. Hence, the second appeal to this Court.

(2.) The principal question which has been seriously put forward on behalf of the appellant is that in the absence of the sale deed the plaintiffs have no title to maintain the suit in ejectment and that they cannot rely upon their possession as it was for a period not more than ten years. The learned Advocate-General in reply submitted that he was not relying upon the title created in favour of the plaintiff by the transfer from the original tenant but upon the title created in his favour by the recognition by the landlord. He put forward his argument in this way. He says that by the provisions of Section 47, C. P. Tenancy Act, an unauthorised transfer can only be challenged by a person who would be entitled to inherit the right of the transferring tenant in the event of his death without nearer heirs or by the landlord but within two years from the date when such a tenant parted with possession. As in this case no proceeding whatsoever was taken under Section 47 the land must be treated as abandoned and therefore the landlord alone had the right to recover possession. It is urged that the same result ought to follow because the landlord instead of taking possession has recognised the possession of the plaintiff. I do not agree with the contention of the learned Advocate-General. The procedure prescribed in Section 47 is a procedure which must be followed in order to recover possession from the transferee either by the person who would inherit the holding in the event of the death of the tenant without heirs or by the landlord. If such a procedure is not adopted the transfer by the occupancy tenant, which is declared voidable by Section 46 (3), has not been avoided. It will be noticed that, the transfer is not void but voidable, and the Legislature clearly says that such a transfer is voidable only in the manner given to the extent provided by Secs.47 and 48. No application having been made under Section 47 in this case, the transfer remains good and cannot be avoided.

(3.) But the transferee not having a title deed in his favour-the sale not having been registered-cannot maintain a suit in ejectment and is exactly in the same position as a transferee who is now allowed to take advantage as a defendant to resist a possessory suit by the provisions of Section 53A, T. P. Act. It has been held by their Lordships of the Judicial Committee in Probodh Kumar Das v. Dantmara Tea Co. Ltd. that the provisions of Section 53A cannot be used by a plaintiff but afford a good defence to a suit for ejectment. For these reasons it must be held that the plaintiff is unable to establish his title to maintain the suit in ejectment. The appeal must therefore be allowed, and although for reasons different from those that commended themselves to the trial Court, I would set aside the decision of the learned Subordinate Judge and restore the decision of the learned Munsif, but in the circumstances each party will bear his own costs in all the Courts. Fazl Ali, C.J.