MADHUSUDAN SAMANTARAI Vs. BRAJASUNDER DAS

JUDGEMENT

(1.) This appeal is by plaintiff 1 in a suit for declaration of his title as occupancy ryot in respect of "ka" schedule lands being a part of holding No. 297. The holding admittedly be-longed to defendant 2 and the part, in dispute, was purchased from him by the appellant on 21 February 1927. The rest of the holding had been sold to plaintiffs 2 and 3 who, however, have not come up in appeal. Defendant 1 who is a purchaser at revenue sale of the touzis within which the holding lies, maintained a suit for recovery of arrears of rent against defendant 2 and brought the holding to sale in execution of the decree and purchased it. He took out delivery of possession through Court. The plaintiff feeling himself disturbed came to Court with a prayer for declaration of title and confirmation of possession or in the alternative for recovery of possession. The plaintiff had also, in order to make out a good title as against the landlord, pleaded that he bad taken the consent of the then proprietor to the transfer and that, at any rate, his transfer was within the knowledge of the landlord. All these pleas were negatived and it has been held by the Courts below that the holding as such had been sold in execution of a rent decree and defendant 1 having purchased the same effectively so as to bind the plaintiff as against any interest that he claims in the property, the plaintiff must be non-suited.

(2.) The only contention that has been advanced before us by Mr. S.P. Mohapatra, the learned Counsel for the appellant, is that the decree obtained by defendant 1 cannot be a rent decree and it must be a money decree. The Court's sale in execution of such decree cannot pass the holding as such but only the right, title and interest of the judgment-debtor. In this view, he urges that the plaintiff's right acquired by his transfer remains entirely unaffected by the sale and the delivery of possession. He bases his contention on what he calls effect of Section 31-B of O.T. Act. His submission is that by virtue of Section 31-B, his transfer became complete and binding against the landlord and that in that event the holding could not be represented without impleading him either in the suit or, at any rate, in the execution proceedings. This contention can be sufficiently answered by reference to Sub-section (2) which reads: The holding or a portion or a share thereof shall not be liable to be sold in satisfaction of the decree for arrears of rent without making the said transferee a party to the proceedings in execution of the decree provided that the transferee has given notice of transfer by registered post to the landlord.

(3.) Stress is to be laid upon the last few words of the Sub-section, namely, "provided that the transferee has given notice of the transfer by registered post to the landlord." This Sub-section is evidently dealing with the landlord's right to bring the holding or a portion or a share thereof in the hands of the transferee to sale in execution of a decree for arrears of rent. This liability or exemption from this liability is made dependent upon the fulfilment or otherwise of the condition of giving notice by registered post to landlord. To give effect to Mr. Mohapatra's contention would amount to say in the face of Sub-section (2) that notice or no notice the transferred holding or a portion thereof shall no longer be liable to sale in execution of a decree for arrears of rent. This is evidently not the intention of the Legislature nor the language employed by them lends support to any such contention. Mr. Mohapatra means to contend that the virtual consequence of Section 31-B, Sub-section (1) is to make the holding retrospectively transferable. I can pronounce without any hesitation that this is hardly so. The object of the Sub- section was to protect the transferee of either whole or a part of occupancy holding from ejectment and to save the landlords their pre-amendment day's rights to recover mutation fees. Mr. Mohapatra contends these are all the rights or incidents which go to make up a complete and binding transfer of an occupancy holding. The answer to this question is certainly in the negative. The transferee until he would get himself recognised by the landlord would have to go by the holding being represented by the recorded tenant. That was how the position stood at the time when Section 31-B was inserted. It has, therefore, to be found out from the amending provision whether this right or liability by whatever name it may be called, to be represented in respect of the holding through the recorded tenant has either been lost or retained as it is. It is clear from Sub-section (2), particularly from the proviso added thereto, that in the absence of knowledge of the landlord by a communication through a registered post, he has to look to the old tenant for the purpose of realisation of rent through Court and by process of law. The underlying principle of determining a decree either as rent decree or money decree consists in determining whether the holding has been duly represented in the suit. This representation depends upon either the state of the record of rights or the state of the landlord's rent-roll. To these conditions the only other condition that can be stated to have been added by the amending provision of Section 31-B, Sub-section (2) is notice to landlord of the transfer by the transferee by registered post. These are the tests to determine whether the old recorded tenant should continue to represent the holding or not. In the circumstances of this case, we are constrained to hold that the holding was duly represented in the suit for recovery of arrears of rent and in the execution proceedings through the recorded tenant. Unless this position is acceded to which seems to be the right position deducible from the provision there will be impossible position for the landlord so far as his right of realisation of rent is concerned. In order that a transferee may avail himself of the rights, privileges and exemptions provided for in the section he must comply with the requirements laid down there as conditions precedent.