Patna High Court
Chandiprasad vs Awadh Narain Jha And Ors. on 9 November, 1951
Equivalent citations: AIR1952PAT143, AIR 1952 PATNA 143
JUDGMENT Sarjoo Prosad, J.
1. In the suit to which this appeal relates, there are various sets of defendants, the appellant being the defendant fifth party. The suit was for declaration of title and confirmation of possession in respect of a certain area of land comprised in Khatas 46 and 55. These Khatas belonged to the head of certain family, and later came to be inherited by three different branches of the family including the branch or one Hiraman, defendant No. 1. On the pleadings, it is not disputed that the disputed lands formed a separate unit of tenancy between Hiraman defendant No. 1 and the landlords. The plaintiffs in April 1932 purchased these lands from Hiraman It appears that the landlords instituted a suit for rent for the lands in question impleading the original tenants, and obtained a decree for rent. This was in February 1934, and in execution of the said decree the landlords got the lands sold and purchased themselves in November 1935. An application under Order 21, Rule 90, Civil Procedure Code was filed by the plaintiffs who had purchased the disputed area, for setting aside the sale in favour of the landlord-decree-holders, and in that proceeding a compromise petition was eventually filed by virtue of which the plaintiffs- were allowed to make a deposit of a certain sum of money within a certain period in order to have the sale and delivery of possession set aside. This the plaintiffs did, and therefore, the terms of the compromise took effect resulting in cancellation of the sale in favour of the landlords. The landlords, however, instituted another suit for rent, being Rent Suit No. 14051 of 1937. This time again it was against the original tenant and not against the plaintiffs who were the transferees. In that rent suit, the landlords obtained a decree in December 1937, and in execution thereof they got the lands sold in May 1938. The lands were purchased by the defendants fourth patty at the auction sale, and the defendants fourth party subsequently assigned their interest to the appellant. In that execution case, delivery of possession was also said to have been effected in February 1939. The plaintiffs, however, claim to have remained in possession of the area purchased by them, and they allege that because they were not party either to the rent suit or to the execution proceedings, their interest in the lands was unaffected by any such sale in execution of the said decree. The plaintiffs, however, state that there was some adverse order passed against them in a proceeding under Section 144, Criminal Procedure Code, and therefore, they instituted the present suit. The most material part of their averment is that as a result of the compromise arrived at in the proceeding under Order 21, Rule 90, Civil P.C., between the landlords and themselves in which they deposited the money required for setting aside the sale and which the landlords eventually withdrew, their tenancy was recognised by the landlords. This was all the greater reason why the subsequent suit for rent against the original tenant could not effect the plaintiffs' interest in the disputed lands.
2. The appellant, on the other hand, contended that there was no recognition of the plaintiffs as tenant; and in the compromise effected in the proceeding under Order 21, Rule 90, Civil P.C., aforesaid, the landlords did not concede to the plaintiffs any more than the right to deposit the decretal dues, or the amount for which the sale had been effected. In addition to this defence, there were other defences to the action which it is hardly necessary to mention except the defence as to the suit being barred under S, 47 of the Code of Civil Procedure, and also by the general and special law of limitation.
3. The two Courts below have decreed the plaintiffs' suit and held that the effect of the compromise in May 1937, in relation to the proceeding under Order 21, Rule 90, Civil P.C., amounted to a recognition of the tenancy by the landlords. They have, therefore, held that the subsequent suit for rent and the decree obtained thereunder had only the effect of a money decree, and could not, in any manner, prejudice the interest of the plaintiffs. It has been further found that the plaintiffs were dispossessed within two years of tile date of the action, and therefore, there was no question of limitation in the case either under the general or under the special law of limitation, and it has been held that the suit was not barred either under Section 47, or under Order 21, Rule 90 of the Code of Civil Procedure.
4. Mr. E. C. De has placed before us a copy of the compromise petition filed in the proceeding under Order 21, Rule 90, Civil P.C. The petition is to the effect that if the petitioner (meaning the plaintiffs) paid Rs. 161/- on account of the entire sale money and expenses to the decree-holder on the 30th Asarh 1344, then the auction-sale dated the 4th of November 1935 should be declared as cancelled and the delivery of possession should be set aside; but if, on the other hand, the petitioners did not pay the entire amount as required by the terms of the compromise, then the sale and delivery of possession would remain in force. Prima facie, on the terms of this application there is nothing to indicate that the landlord auction-purchaser agreed to recognise the tenancy of the plaintiffs-petitioners in regard to the purchase made by them. All that is said is that the plaintiffs were given a right to deposit the amount of the sale money and expenses within a certain period, and on such deposit being made, the sale was to be set aside. It has been accordingly contended by Mr. De on behalf of the appellant that the view of the Court below as to the interpretation of this compromise petition is incorrect. The Court below while considering the terms of this compromise petition observed as follows:
"In the present case, it was not merely a mechanical withdrawal, but a withdrawal preceded by a contract between the plaintiff as the purchaser of a part of the holding and the landlord who had obtained a decree against the original recorded raiyats. Such a contract is an active participation of the landlord in a dealing with the plaintiff, as the purchaser of a part of the holding. To say that this does not amount to recognition and to tolerate the same landlord who has entered into a contract with the purchaser, and who in pursuance of the contract has taken the decretal amount, and has given up the holding purchased by him; to say that after all this, the landlord can still bring a proper rent suit, ignoring this purchaser, is the most inequitable proposition."
Mr. De is justified in contending that if on the face of the compromise petition there is nothing to show that there was any recognition of the tenancy, the mere fact that the landlord permitted the plaintiffs to deposit the decretal dues and also the expenses incurred cannot necessarily imply that the landlord recognised the tenancy as such. The learned District Judge as shown above seems to rest his decision on the ground of inequity. But he evidently omits to notice that the question of recognition does not depend on any such equitable principle at all. Either the landlord has actually recognised the tenancy or such recognition is imputed to him by law. Mere withdrawal of the money so deposited by a person did not necessarily amount to recognition of the tenancy of that person. In this connection our attention has been drawn to two decisions of this Court. In DINA NATH v. DINA NATH', 11 Patna 257; AIR (19) 1932 Pat 192, it was pointed out that if the money deposited by a person claiming to be a tenant in execution of an ex parte decree for rent is withdrawn by the landlord under protest, it does not amount to a recognition of the tenancy as regards the person making the deposit. This decision appears to have been followed in 'INDERJIT PRATAB v. SURAJ NARAIN', AIR (27) 1940 Pat 21 by Dhavle, J., sitting alone. The facts of these cases may be distinguishable, because there the landlord withdrew the money deposited under protest. The learned Counsel, however, argues that Section 170, Sub-section (3) of the Bihar Tenancy Act, itself provides that the judgment-debtor or any person whose interests are affected by the sale. other than a transferee of a holding from whom the landlord is entitled to receive the landlord's registration fee and who has neither paid the landlord's registration fee to the landlord nor deposited the same with the Collector, may pay money into Court under this section. It is, therefore, contended that on the strength of this provision it is open to "any person" whose interests are affected by the sale to deposit the money. Such a person need not necessarily be the tenant and the mere fact that the money has been allowed to be deposited by such a person will not mean that the tenancy of the depositor has been recognised by the landlord. These criticisms, as I have , said, have great force. In my opinion, if the decision were to rest merely on the fact that the money deposited by the plaintiffs under the compromise had been withdrawn by the landlord, it would be difficult to hold, as it has been erroneously held by the Court below, that there was any recognition of the tenancy. The decree of the Court below, however can be supported on a different line of reasoning.
5. Admittedly, the plaintiffs had purchased the disputed lands which formed a separate unit of tenancy in April 1932. As purchasers they filed an application under Order 21, Rule 90, Civil Procedure Code for setting aside the sale. In the meantime, it may be pointed out, certain amendments to the Bihar Tenancy Act had come into force giving a right of transfer to occupancy tenant subject to the payment of certain fees to the landlord: 'Vide' the Bihar Tenancy (Amendment) Act VIII of 1934. Section 26-B of the said Act provided that subject to the other provisions of the Act an occupancy raiyat shall have power to transfer his holding or any portion thereof together with the right of occupancy therein by sale, exchange, gift, etc. Under Section 26-D of the Act, the landlord in case of such transfers was entitled to receive from the transferee as a condition of his consent a fee called the landlord's transfer fee, and a certain proportion of the transfer fee was indicated in the provision. The other relevant section of the amending Act is Section 26-F which enacted that if the landlord's fee were paid in accordance with the provisions of the Act, the landlord or his agent or every co-sharer or his agent should be deemed to have given his consent to the transfer. Therefore, by virtue of these amendments the transferee became entitled to be recognised as tenant of the land transferred in his favour, provided he paid the landlord's fee as required by the law. Now, the question then arises whether the landlord could waive his right to realise the fee from the transferee and recognise the tenancy. There can be no doubt that if the landlord accepts rent from the transferee without insisting upon the payment of the landlord's fee for the transfer as required by law, there would be recognition of the tenancy of the transferee. Similarly, if the landlord allowed the transferee to deposit the amount of sale in execution of his rent decree and the costs of execution thereof without insisting upon the payment of the landlord's fee, it would amount to waiver of his right to realise the fee on the part of the landlord. Under Section 170 (3) of the Bihar Tenancy Act, a transferee of a holding from whom the landlord is entitled to receive the landlord's registration fee but who has not paid the landlord's registration fee or deposited the same with the Collector, is not entitled to make a deposit for setting aside the sale. The provision was the same under the Act of 1934. Therefore, the plaintiffs as transferees were not entitled to make a deposit under the law except on the assumption that the fees had been paid or that the landlords had remitted them. It, therefore, necessarily follows that when the landlord auction purchasers allowed the plaintiffs to deposit the sale money and expenses under the terms of the compromise petition for setting aside the sale, and the plaintiffs did make the deposit as transferees of the holding, the landlords waived their right to receive the registration fee. There being no other bar to the recognition of the tenancy by the landlords, it must be held that the landlords did recognise the tenancy of the plaintiffs. Mr. De contends that in such cases, there should have been a definite provision to that effect introduced in the compromise petition itself, and in the absence of such a term, there should be an adverse interest against the plaintiffs. In my opinion, there is no substance in this argument. It was not necessary to mention all these in the compromise petition itself, because under the law, as it stood, there was a good transfer in favour of the plaintiffs subject to the recognition of their tenancy by the landlords; and the landlords were bound to recognise the tenant if the landlords' registration fee had been deposit^ or paid to them," or if they had waived their right to such payment. The only inference possible in the circumstances is that they waived their right to the realisation of the registration fee and as such accepted the tenancy of the plaintiff transferees. It is true that this aspect of the case was not presented to the Court below, but having regard to the state of the law discussed above, the conclusion is irresistible.
6. The other point which has been urged by the appellant is that a separate suit did not He, because the plaintiffs were in a position of the representative of the original tenants against whom a decree in Rent Suit No. 1405 of 1937 had been passed, and whatever objection might have been available to them should have been raised in the execution proceeding itself and not in a separate suit. In this connection, reliance has been placed upon two decisions of this Court in 'BHIKHIA JHA v. BRIJ BIHARI', 2 Pat L J 478 and 'PANCHRA-TAN v. RAM SAHAY', 3 Pat L J 579. In these cases it was held that the purchaser of the whole or part of an occupancy holding not transferable by custom is a representative of the judgment-debtor and is entitled to object under Section 47 of the Code of Civil Procedure. It is not necessary to examine these cases in detail because they relate to a stage when occupancy holdings were not transferable except by custom. In those cases it could be very well conceded that the transferee had no independent right of his own except of a claim through the original tenant, his transferor, and as such he might well be regarded as a representative of the judgment-debtor who was a party to the decree. The position has been substantially altered by the change in the law under which an occupancy holding can be transferred, and the transferee can acquire an independent right of his own by virtue of the transfer in question. Therefore, if the transfer was an effective transfer before the institution of the suit : in that case the suit instituted by the landlord against the original tenant could not affect the interest of the transferee, and the transferor could not be regarded as a representative of the judgment-debtor in such a suit. These cases, therefore, have no application to the case with which we are concerned at present. It is to be remembered that here the transfer was in April 1932, long before the institution of Rent Suit No. 1405 of 1937, and if the transfer in favour of the plaintiffs had come to be recognised by the landlords, as I have held above it had been recognised, then I do not see how the bar of Section 47 or Order 21, Rule 92, Civil P.O., could apply to the present case.
7. Another point which has been urged by learned Counsel for the appellant is that the suit should be held to be barred under Article 120 of the Limitation Act. I should observe that the finding of the lower appellate Court is that the dispossession of the plaintiffs, if any, was in October 1944, the suit having been filed in April 1946. Therefore, not even the special limitation Schedule III of the Bihar Tenancy Act applies to the case much less any limitation under Article 120 of the Limitation Act. Mr. De has drawn our attention to a decision of the Judicial Committee of the Privy Council in 'JITENDRA NATH y. MONMOHAN', 57 Ind App 214. In that case, it appears that the landlord had obtained a decree for rent making the original tenants and their heirs defendants to the suit, and in execution of such a decree had applied for a sale of the tenure under Chapter XIV of the Bengal Tenancy Act, 1885. The transferees then sued for a declaration of their interests in the lands and also to restrain the sale. It was held that in such a case Article 120 of the Limitation Act would apply, and the period of limitation for the suit would be six years from the date when the right to sue accrued, that is, the elate when the landlord, applied for sale and not the date of the decree. There can be no doubt that a suit of this nature for which there is no specific Article under the Limitation Act would be governed by the residuary Article 120 of the Limitation Act, and their Lordships held accordingly. The present case is a case for a declaration of title and confirmation of possession, in other words, for recovery of possession of the lands. Such a case comes under the specific provisions of Article 142 of the Limitation Act, and I do not see how Mr. De can press to his aid the aforesaid decision of the Judicial Committee, in order to make us hold that in the circumstances of the present case the residuary Articles, viz., Article 120, would apply. In my opinion, there is no substance in this contention at all.
8. For the above reasons, I would dismiss the appeal and affirm the decree of the Court below with costs to the plaintiffs-respondents.
Das, J.
9. I agree.