BHUPENDRA NARAIN DUTT Vs. KUMAR MANMOTHA NATH MITTER

JUDGEMENT

(1.) THIS is an appeal by the defendants Nos. 1 and 3 against a judgment of the learned District Judge of the 24-Pergunnabs reversing the decision of the learned Additional Subordinate Judge of the same place. The suit was a suit for the recovery of certain rent in arrears and it was brought by the plaintiff as a co-sharer of a tenure of 900 bighas of land held out of Lot No. 41 in Touzi No. 1466 in the Sunderbunds. Two points have been raised in this appeal. The first point is that there was no evidence on which the learned District Judge could find that it was a separate tenure of 900 bighas held out of Lot No. 41 at an annual rent of Rs. 420. We have been taken through a considerable amount of documentary evidence which has been read before us. The question in a case like this is not whether we should arrive at the same conclusion as the learned Judge, but the question is whether the learned Judge had before him evidence which entitled him to arrive at the conclusion that there was a separate tenure of 900 bighas held out of Lot No. 41 at a rent of Rs. 420 per annum. It is quite clear that there was a considerable body of evidence before the learned Judge and amongst that evidence there were admissions in writing made by the appellants before us. The learned Judge acting on that evidence made a clear finding that there was the separate tenure of 900 bighas held out of Lot No. 41 at a rent of Rs. 420. There is nothing to say on that. I cannot see any reason on which the finding of the learned Judge can be disturbed. Dr. Mitter says that there are some reasons why this should not be treated as a separate holding bat ought to be treated as one holding with the original holding of 1,302 bighas. Those considerations cannot weigh with us.

(2.) THE other point that has been raised is on the finding of the learned District Judge that the plaintiff as a co sharer is entitled to maintain a separate suit for his share of the rent on the ground that he having been registered under the provisions of the Land Registration Act, the provisions of Section 60 of the Bengal Tenancy Act do not permit, in a suit by a landlord to recover rent, the entry in the register to be challenged by the tenant. Dr. Mitter has put forward the case that his clients, the tenants, are also co sharer landlords and the case may involve a considerable hardship on the ground that the decision in this case may amount to res judicata. Clearly it will not amount to res judicata. If the Statute prohibits this matter to be enquired into in a rent suit, it cannot be judicially determined as between the plaintiff and Dr. Mitter s clients, and cannot be determined except in a proper suit. It seems to me that the view that the learned District Judge has taken is clearly right. Under the sections of the Land Registration Act, apparently registration is not conclusive so as to prohibit the tenant from setting up the right of a third party in a rent suit and the reports of the cases in this Court show that the tenants have resorted to that right. But it was intended by the Legislature in the Bengal Tenancy Act, that, in a rent suit where the only point can be as to the tenant s acquittance, for the rent, registration should be taken as conclusive and that the tenant should not in a rent suit be entitled to fret up that the rent is due to a third party, Section 60 of the Bengal tenancy Act says this in clear and unmistakable terms. If the Statute says this, we ought to give full effect to the words of the Statute. It is said that the decision of this Court in the case of Durga Das Hazra v. Samash Akon (5) is the other way. That was a decision of Mr. Justice Morris and Mr. Justice Gordon, and what they decided in that case was that the facts found by the learned Judges took the case out of Section 60 of the Bengal Tenancy Act. It is qui e clear that that case is not an authority for stating that, in a suit for rent, the tenant can challenge the title of the landlord duly registered under the provisions of the Land Registration Act. In this case, any rights that the appellants have as co-sharers as against the plaintiff, of course, they will be able to enforce such rights in a properly constituted suit; but in a suit for rent, it seems to me quite clear under the provisions of Section 60 of the Bengal Tenancy Act that the tenant is prohibited from setting up the title of a third party to receive the rent sued for. I agree in the conclusion arrived at by the learned District Judge. THE present appeal, therefore, fails and must be dismissed with costs.