ABDUL RASHID SHEIKH Vs. SACHIDANANDA RAJ

JUDGEMENT

(1.) This appeal is on behalf of the plaintiffs and it arises out of a suit commenced by them to recover khas pos. session of the lands in suit on establishment of their title to the same as tenants under defendants 1 to 3. The facts lie within a small compass. The disputed lands which measure 5 bighas 3 cottas admittedly belong to defendants 1 to 3 as being within their putni and darputni tenures and they were originally held by them in khas. In April 1925, they granted a mokarari lease of 6 bighas and 3 cottas of land including the lands in suit to defendant 6, reserving a yearly rental of Rs. 13-7-0. Defendant 6 sold 1 bigha out of these lands to one Rustum and by three separate kobalas executed between 1925 to 1929, sold the balance of 5 bighas 3 cottas which is the subject-matter of the present dispute to the plaintiffs. Rustum had a separate jama created in respect of his 1 bigha plot in the sherista of the landlord for which an annual rent of Rs. 2 annas odd was paid by him separately. The plaintiffs did pay the landlords fees at the time of their purchase and their names were recorded in the cadastral survey records as tenants under defendants 1 to 3 in respect of the lands in suit. Defendants 1 to 3 however ignoring the rights of the plaintiffs brought a suit for rent against defendant 6 claiming rent for the suit lands and having obtained a decree in that suit put up the land to sale and purchased that themselves in December 1932. They took symbolical possession in 1934 and took away certain paddy crops grown by the plaintiffs. The plaintiffs thereupon instituted a suit for an injunction restraining these defendants from taking possession of the properties and in that suit the defendants gave out that they were possessing the lands through their bargadars, defendants 4 and 5. That suit was dismissed on the ground that as the plaintiffs were already dispossessed no suit for injunction would lie. Thereupon the present suit was instituted in June 1935 and the plaintiffs claim khas possession of the lands in suit as well as mesne profits and damages. The material defence was that defendant 6 was an ordinary ticca tenant and did not acquire either mokarari or even occupancy right in the lands in suit under defendants 1 to 3 and that the plaintiffs were in the position of unrecognized transferees and were hence bound by the decree which defendants 1 to 3 obtained against defendant 6. Defendant 3 put forward an additional plea that he not being a party to the potta granted to defendant 6, defendant 6 or the present plaintiffs were not tenants under him.

(2.) The trial Court held on evidence that all the defendants including defendant 3 were bound by the terms of the potta granted to defendant 6 which created a permanent and transferable interest in favour of the latter and as the plaintiffs purchased the suit lands by a registered kobala and duly paid the landlords fees they became tenants since the date of their purchase and no question of recognition did arise. The decree which defendants 1 to 3 obtained against defendant 6 was therefore not binding on the plaintiffs and they were not in any way affected by the execution sale. On these findings, the trial Court decreed the plaintiffs suit. Defendant 3 alone took an appeal to the lower Appellate Court against this decision. Although the main point taken on behalf of defendant 3 in the trial Court was that as he was a minor at the time when the potta was executed he was not in any way bound by the same, yet this contention was not raised on his behalf in the appeal preferred by him. There were two other points raised before the lower Appellate Court on his behalf both of which found favour with the learned District Judge who allowed the appeal and dismissed the plaintiffs suit. The first ground upon which the District Judge allowed the appeal was, that there was an express covenant contained in the potta granted to defendant 6, which created the lease, to the effect that though the lessee would be at liberty to transfer his interest, yet he would remain liable for rent so long as the relationship of landlord and tenant was not established between the landlord and the transferee. It was held that under this covenant, which was valid and enforceable, defendant 6 remained liable for rent as the plaintiffs were not recognized as tenants by defendants 1 to 3 and consequently the rent decree against defendant 6 and the sale in execution thereof were binding on the plaintiffs. The second ground accepted by the District Judge was that the previous suit for injunction commenced by the plaintiffs against defendants 1 to 3 having been dismissed, the present suit was barred under Order 2, Rule 2, Civil P.C. The propriety of both these grounds have been challenged before me by the learned advocate who appears for the plaintiffs-appellants.

(3.) As regards the first point I have no doubt in my mind that it is quite possible to insert a stipulation in a permanent lease providing for the fulfilment of certain conditions, without which a transfer by the lessee would not be binding on the land-lord. Thus there may be a covenant that the transferee should furnish security or that he should pay a mutation fee and. unless these are done, the transferor would not be absolved from his liability to pay rent and the landlord shall not recognize the transferee: vide Dinabandhu Roy V/s. W.C. Bonerjee (1892) 19 Cal. 774 and Nabjan Sardar V/s. Neburali Molla . In the present case the clause of the potta Ex. 11 which is material for our present purpose and upon which reliance has been placed by the District Judge t runs as follows: You will be entitled to possess and enjoy lands with great felicity down to your sons, grandson and heirs and successors with rights of transfer of all sorts in case of transfer so long as the transferee does not establish the relationship of landlord and tenant with us till then you with your heirs and successors would remain liable for rent.