HARGOURI PRASAD Vs. RAGHUNATH SINGH

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the plaintiff who is the transferee of a portion of a holding situated in village Matwalwa in the District of Monghyr, to recover possession of the lands sold to him from defendant 1 who is admittedly the landlord of the village. The lands in question were sold to the plaintiff by two sale deeds dated 29 February 1928 and 19 September 1929. The plaintiff's allegation was that he got possession of the lands upon the execution of the sale deeds, but he was dispossessed by the landlord some time about 30 May 1930. The suit was contested by defendant 1 on the allegation that the holding was not transferable, that as a matter of fact the original tenants had made a gift of the entire holding in favour of his sons and the latter had surrendered it to the landlord and that the suit was barred by limitation. It was further pointed out on behalf of defendant 1 that at the date of the institution of the suit the entire holding had passed out of the possession of the original tenant, a portion of the holding having been sold to one Lakhi Singh on 15 October 1928.

(2.) The principal point which appears to have been in dispute in the Courts below was whether the holding was by custom transferable or not and on this point the Courts below came to two different conclusions. The first Court held that the holding was not transferable and accordingly dismissed the plaintiff's suit. The lower appellate Court, on the other hand, has held that the holding was transferable and passed a decree in favour of the plaintiff. The first point which has been raised on behalf of the appellant (defendant 1) in this second appeal is that the finding of the lower appellate Court that the holding is transferable is not conclusive because the Court has in coming to this conclusion, taken into consideration evidence which was not relevant to the point in issue. It appears that the learned Subordinate Judge in coming to the conclusion that the holding was transferable relied upon the village note which contained a definite entry to that effect and upon certain sale deeds coupled with the evidence of the fact that the sales had been recognized by the landlord without any salami having been paid to him. The point which has now been raised is that these sale deeds relate only to portions of holdings and therefore have no bearing on the question in issue. It has, however, been pointed out by the learned advocate appearing for the respondents that there is nothing in the judgments of either of the Courts below to show that these sale deeds related only to portions of holdings and in fact no such contention was raised even in the memorandum of appeal filed in this Court. It is, therefore, clear that the finding of the learned Subordinate Judge cannot be challenged in second appeal.

(3.) The next contention put forward on behalf of the appellant is that this case is governed by Section 26(O), Bihar Tenancy (Amendment) Act of 1934 and that the title of the plaintiff is not perfected until he pays to the landlord, or deposits with the Collector, a certain percentage of the consideration paid for the transfer, as specified in that section. The learned advocate for the appellant tried to support this contention by relying on certain observations made by their Lordships of the Judicial Committee in K.C. Mukherjee V/s. Mt. Ramratan Kuer . That was a case in which a question arose whether the transfer of an occupancy holding made before 1923 would be affected by the provisions of Section 26(N) of the Act. Section 26 (N) provides that every person claiming an interest as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion thereof by sale, exchange, gift or will, made before first day of January 1923. Accordingly it was held in that case that as the transfer in question had been made before 1923 the landlord must be deemed under this provision to have given his consent to it. Their Lordships also incidentally referred to Section 26(O) and observed as follows: Again if Section 26(O) is looked at, it will be seen that in the case of a transfer made after 1 January 1923, but before 10 June 1935, the provision is that the transferee may pay or deposit the landlord's transfer fee and thus perfect his title. There is no suggestion that a transferee shall be incompetent to make the payment or that the Collector shall refuse to receive the money in any case in which the transfer is impugned in a pending suit.