SARAT CHANDRA GHOSH Vs. JAMUNA PRASAD BHAGAT

JUDGEMENT

(1.) THIS is an appeal by a plaintiff who sued on a mortgage executed on 17th September 1927 by defendant 1 for a principal sum of Rs. 500. The mortgage covered land and a house which belonged to defendant 1 as chandnadar. Defendant 2, who is the contesting respondent, purchased the land In execution of a decree for rent obtained on 15 January 1987 by the landlord of defendant 1. The price paid by defendant 2 for his auction purchase was Rs. 55. The suit out of which this appeal arises was instituted on 2 September, 1937 and the plaintiff claimed a mortgage decree for sale as against both the defendants. The Munsif who tried the suit gave a money decree against defendant l and dismissed the suit as against defendant 2.. The lower Appellate Court granted a mort-gage decree against defendant l in respect of the house alone not including the land. Otherwise it confirmed the decree of the trial Court-There are two questions raised on behalf of the appellant : first, that the decree for rent obtained against defendant 1 by the landlord did not give any charge under Section 74, Orissa Tenancy Act, and that the right or tenancy of defendant 1 as chandnadar was not a tenure or holding within the meaning of that section and that, therefore, defendant 2 purchased, only the right, title and interest of defendant 1 and would, therefore, in any ease, purchase subject to the right of the plaintiff appellant as mortgagee under the mortgage of 1927;. secondly it was urged on behalf of the appellant that the civil Court which passed the decree for rent, in execution of which defendant 2 purchased the land, had no jurisdiction to entertain a suit for rent against a chandnadar and that, therefore, the decree, in execution of which defendant 2 purchased, was . a nullity and, therefore, defendant 2 acquired no right as against the appellant, the mortgagee. I think, it will be convenient to deal first with the second of these questions. Now it is conceded on behalf of the respondent that suits for rent against other classes of tenants are triable by the revenue Courts under the Orissa Tenancy Act. Section 193 provides that all suits and applications under any portion of this Act, other than Chapter XI, shall be cognizable by the Collector and shall be instituted and tried or heard under the provisions of this Act and shall not be cognizable by any other Court except as provided in this Act. 3. Now under Section 4 of the Act, there are four-classes of tenants : (1) Tenure-holders including under tenure-holders, (2) raiyats, (3) under raiyats and (4) chandnadars. Prima facie it would seem to be obvious that if a suit for rent against one of these classes of tenants is a suit under the provisions of the Orissa Tenancy Act then suits for rent against, all these, classes are equally suits under the provisions of this Act. THIS, to my mind, is supported by the fact that Section 198 gives certain directions, regarding rules which shall apply to suits for the recovery of rent, and it is noted under heading (c) that the plaint shall further contain (1) in the case of a holding a statement of the plots, area and rental of-the tenancy according to the record of rights and (2) in other cases a description of the tenancy sufficient for its identification taken from the record of rights. These directions are subject to certain exceptions and provisos with which we are not now concerned. It seems to me clear that this section applies to all classes of tenancies and there is no justification for read-ing it as excluding a case of a chandnadar. An attempt was made to distinguish the case of a chandnadar on the basis of certain sections of the Orissa Tenancy Act which deal with the method of executing particular types of decrees and in particular Section 212 onwards which deal with a sale for arrears under a decree. It is urged that those sections have no application in the case of a chandnadar. Even if this interpretation of those sections is correct, and at present I see no reason to doubt it, this does not, to my mind, in any way go to show that other sections of the act, including particularly Section 198, do not apply to suits for rent against chandnadars. It was conceded that there is no notification under Section 1(3), Orissa Tenancy Act, excluding the Cuttack Municipality from the provisions of the Orissa Tenancy Act. It seems, however, to have been suggested before the lower Courts that there was some notification by Government requiring suits for rent against chandnadars in the municipal area to be filed in the civil Court. The parties, however, have been unable to show the existence of any such notification. I find it difficult to understand under what provision of the Act any such notification could actually be issued, but, in the absence of a specific notification, this point cannot be definitely determined. In my opinion it is clear that the revenue Courts have the power to take cognizance of and try suits for rent against chandnadars equally with other tenants under the Orissa Tenancy Act. It follows, therefore, from the provisions of Section 198 that no other Court can take cognizance of such a claim. It also follows that the decree passed by the civil Court, in execution of which defendant 2 purchased as an auction purchaser, was without jurisdiction and that defendant 2 acquired no title by his purchase. 4. It was urged on behalf of defendant 2, respondent, that as the right of chandnadar is not transferable this defendant 2 acquired right by virtue of settlement from the landlord to the exclusion of defendant 1 whom he would regard as having abandoned his holding. In my opinion this view of the position is wrong. It was held in Hargobind Das V/s. Ramchandra Jha A.I.R. 1927 Pat. 53 that a purchaser in execution of a decree for rent against a tenant does not step into the shoes of the landlord but becomes a tenant of the landlord and that a mortgage of a non- transferable holding without the consent of the landlord, though it may not be a valid encumbrance against the landlord, is valid against a person who purchases the holding at a sale in execution of a rent decree against the tenant and that where a purchaser in a rent sale fails to annul such an encumbrance he loses all rights to avoid the same and the holding remains subject to the mortgage. THIS decision so far was confirmed by a Full Bench decision of this Court, in Mahadeb Maharaj V/s. Jagdev Singh A.I.R. 1939 Pat. 339. Even, therefore, if it had been a valid decree for rent and defendant 2 had purchased in execution of such a decree, he could not have acquired a right against the plaintiff mortgagee. But it seems to me that his position is not improved but is rather worse when it is found that he purchased in execution of a decree which is in fact a nullity. It was contended on behalf of this defendant 2 that the landlord, who was the decree-holder, by putting this defendant 2 into possession really settled the land with him. I consider that this argument is incorrect. The landlord could not settle the land validly with any one until he himself had a valid title to possession of the land and he could not give himself a valid title to possession either by himself taking possession or inducing someone else to take possession in execution of a decree which was without jurisdiction, and if defendant 1 left possession by reason of the proceedings in execution of that invalid decree and the sale held in execution thereof, such an act on the part of defendant 1 could not be treated as an abandonment of his tenancy but merely meaning that he was dispossessed. 5. It was further contended on behalf of the respondent, defendant 2, that if he is a trespasser no mortgage decree could be passed against him. I am doubtful how far this argument is really valid, because it seems to me that even if he is merely a trespasser he may possibly have a right to redeem under Section 91, T. P. Act, as a person who has an interest in the property mortgaged; and I do not think that he can be treated as a person having a title paramount when he now seeks to put forward his position as a trespasser who entered on the land subsequent to the date of the mortgage. In any case, however, in this view of the matter defendant 2 would have no title and the mortgagee when granted a preliminary decree for sale will have to sell the property and in these circumstances he is concerned merely with what title he can sell. 6. In this view of the appeal I think it is unnecessary to deal with the other point which has been urged viz., the contention that s. 74, Orissa Tenancy Act, must be restricted to holdings and tenures as defined in Section 3 of the Act and will, therefore, not apply to the tenancy or interest of a chandnadar which does not come within those definitions. For these reasons I would allow the appeal and grant the plaintiff mortgagee appellant a pre liminary mortgage decree for sale in respect of the land as well as the house against defen dant 1. The period of grace will be fixed at three months from today. The appellant will be allowed his costs in all the Courts. It should be made clear that defendant 2 will be entitled to redeem the mortgage of the appel lant if he so desires and defendant 2 will be made personally liable for the costs of all the Courts which will not be included in the mort gage decree. The appellant is also entitled to interest pendente lite at the bond rate up to the expiry of the period of grace and there after the amount of the mortgage decree will bear simple interest at 6 per cent, per annum till realisation. 7. I should have mentioned at an early stage of this judgment that we were referred to the decision in Kedar Nath Mulliok V/s. Bikal Prusti 1 cut. L. T. 53 for the proposition that a suit for ejectment against a chandnadar lies in the civil Court and Section 193, Orissa Tenancy Act, has no application. THIS decision was overruled on another point in Jahabaj Khan V/s. Srikrishna Dey 2 Cut. L. T. 9 but this proposition was not affected. It seems to me clear that there is a great distinction between a suit for ejectment of a chandnadar, to which no section of the Orissa Tenancy Act seems to have any application, and a suit for rent. There are many sections of the Act which clearly deal with suits for rent and, as I have stated, it seems clear that those provisions apply to suits for rent against chandnadar as well as to suits for rent against other tenants recognised by the Orissa Tenancy Act. Chatterji, J. 8. I agree.