HARENDRA NATH MITRA Vs. HOSSAINALI SANA

JUDGEMENT

(1.) This rule was issued calling upon the opposite party to show cause why an order made on appeal by the learned District Judge of Khulna dismissing the petitioner's suit should not be set aside. The petitioner claimed under Section 48H, Ben. Ten. Act, to recover the landlord's fee which had accrued on the transfer of the holding of an occupancy raiyat. The facts found were that Umasankar, an occupancy raiyat, holding under the petitioner, transferred a portion of his holding to the opposite party in this rule and that the transfer was an under-raiyati lease in spite of a misdescription in the potta to the effect that it was a raiyati lease. This document was however registered and the petitioner claimed to recover by a suit five times the rent payable under Section 48-H, Ben. Ten. Act. Both the Courts below agreed that the suit was not maintainable. It is against this order the petitioner obtained this rule.

(2.) In our opinion the decision of the Courts below was undoubtedly right. Section 48.H of the Act simply lays down that no lease to an under-raiyat for a term exceeding 12 years shall be registered unless proper landlord's fee is paid to the registering officer. In the present case the lease was registered without the payment of that fee in contravention of Section 48-H of the Act. The result of this non-payment of the land lord's fee was that the lease itself would be void as against the superior landlord. But the section does not entitle that superior landlord to sue for the unpaid landlord's fee. This view is in accordance with that taken in Sukh Chaud Haldar V/s. Jajneswar Mandal . In the result this rule fails and is accordingly discharged. Nasim Ali, J.

(3.) I agree. The learned advocate appearing on behalf of the petitioners contended that the suit was maintainable in the Civil Court, as for infringement of every right there must be a remedy. This argument however assumes that the plaintiffs have got a right to recover the landlord's fee in this case. A right is either a Common law right or a right acquired by contract or by statute. Admittedly this claim is not based on any contract. The argument of the learned advocate is that this right has been created by statute, namely Section 48-H, Ben. Ten. Act. The old section, namely Section 85 (2) of the Act was in these terms: A sublease by a raiyat shall not be admitted to registration if it purports to create a term exceeding nine years.