Authored By : Arthur Wilson, Beverley

Arthur Wilson and Beverley, JJ.

1. The plaintiffs in this case sue to recover certainproperty from which they say they have been dispossessed. Their story isshortly this: That there was a permanent tenure of which Kashi Nath was thetenant; that Kashi Nath died leaving the defendant Goburdhan his son and heir;that Goburdhan sold the tenure, and that by several devolutions, which it isnot necessary for us to examine in detail, the whole tenure became vested inthe plaintiffs; that subsequently one of the defendants, an 8-anna shareholderin the zamindari interest, brought a rent suit, not against the plaintiffs, butagainst Goburdhan; that in execution of that decree against Goburdhan heprofessed to sell the tenure to another defendant; and that in consequence theplaintiffs have been ejected from the property, and hence the suit.

2. The lower Appellate Court has dismissed the suit in thisway,--the Subordinate Judge says: " I think the plaintiffs in this casehave no locus standi. The plaintiffs admit that their father once sued thelandlord-defendant to register his name on the strength) of the bill of sale of1269 B.S." (that is the bill of sale through which the plaintiffs claim)"executed by the defendant No. 3 ; that suit was dismissed, after whichrepeated private attempts were made by the plaintiffs or their father to securethe landlords recognition of their purchase, but they failed," and so on.And then he says that the plaintiffs, not having obtained registration in thezamindars sherista as directed by Section 26 of the Bent Act, are not entitledto recover in this suit.

3. In that, it appears to us that the lower Appellate Courthas made; a mistake. That section does no doubt require the transferee orinheritor of a tenure to register it in the zamindars sherista. It appears onthe face of the judgment that the plaintiffs or their predecessors in titlemade attempts to register their transfer. The section also requires thezamindar to register when so called upon. It appears on the face of thejudgment that the zamindar did not do so. There is nothing in the terms of anysection of the Rent Act saying that if for any reason, whether by the defaultof the tenant or anybody else, the registration is not effected, the transfereeof the tenure shall take no title. On the contrary, there are provisions in theRent Act which indicate that that cannot be so. For example, the proviso inSection 63 says that an unregistered transferee shall not fee recognized as aperson entitled to come in and object to the sale taking place, implying thathe has an interest. If the general intention of Section 26 had been that anunregistered transferee should take no title, it would have been unnecessary toinsert such a proviso to this section. The law was expressly laid down in thecase of Nobin Kishen Mookherjee v. Shib Pershad Pattack 8 W.R. 96. And all theother cases imply the same thing. The case so much retted upon of Sham ChandCoondoo v. Brojo Nath Pal Chowdhry 12 B.L.R. 484 : 21 W.R. 94 clearly does so.That was a suit by an unregistered transferee seeking to establish his right asagainst a purchaser of the tenure under a decree for arrears of rent. If anunresgistered purchaser prima facie takes no title, that case might have beenvery quickly disposed of on that ground. Whereas the case was really decided onthe construction of the sections with reference to the rights of a purchaser.

4. No doubt an unregistered purchaser does take subject tomany disadvantages by reason of the what of registration. One of these is thatembodied in the proviso, to which we have just referred, namely, that he cannotcome in and object to the sale. A second is that established in the case ofSham Chand Coondoo v. Brojo Nath Pal Chowdhry 12 B.L.R. 484 : 21 W.R. 94 thatif a sale takes place in a rent suit brought by and against proper persons, andthe sale be of the tenure, the unregistered transferee has no title as againstthe purchaser. But none of the cases show that an unregistered transferee takesno title, or as the lower Appellate Court expresses it, has no locus standi tobring a suit complaining of an ejectment. On that point we think that the lowerAppellate Court is wrong.

5. Then there is another important point, which should benoticed, because it goes to the very root of the case.

6. In the first place, the plaintiff raises this contention:he says that, assuming that the rent suit was brought, and that there was asale, the person who brought that suit was not a zamindar, but an 8-annashareholder in the zamindari right, and therefore under Section 64, he couldnot, in execution of his decree, sell the tenure: all that he could sell wouldbe the rights of the person against whom he recovered his decree, just in thesame way as he could sell the rights of that person in an ordinary executionunder the Procedure Code in a suit other than a rent suit.

7. Now, the mode in which the first Court dealt with thatpoint is this: It is said that as one of the co-sharer landlords obtained therent decree, he could not have sold the tenure, but only the right, title and interestof the tenant; and as these are proved to have passed from the tenant byprivate sale to plaintiffs prior to date of decree, in reality there was noright, title and interest of the tenant which could be sold. The mode in whichthat was dealt with is this: "All this seems to me to be exceedinglyingenious, but unfortunately is not to be found in the plaint."

8. As to some of the points of which the Munsif wasspeaking, he was no doubt right in saying that they should not be raised atthat stage. As to so much as related to the plaintiffs title he was right insaying that the plaintiff, having alleged one title in the plaint, must not beallowed at the last moment to rely upon another title. But this, about thenature of the rent suit, is a matter not of the plaintiffs title, but of thedefendants title. The plaintiff is not called on to define the nature of hisopponents title. It is for the plaintiff to state his own case. It is for thedefendant to state and prove everything which is necessary to the case on whichhe relies. It was, therefore, for the defendant to allege and to prove what therent suit was, and what the decree was, and that the sale under the rent decreewas of such a nature as to give him priority over the plaintiff. We think,therefore, that the Munsif was wrong in dismissing the matter in that way.Moreover, we think that the contention thus set up by the plaintiff, supposingit to be well founded in fact, is sound in law. The terms of Section 64 areexpress, and the distinction between the two procedures, the procedure to sellthe interest of the tenant and the procedure to sell the tenure, is veryclearly pointed out by the Privy Council in the case of Dular Chand Sahu v.Lalla Chabeel Chand L.R. 6 IndAp 47. That was a case in which the plaintiff,who sued, had the whole interest in the zamindari right; and having recovered adecree against the proper person for rent, it was open to him to proceed, if heliked, under Section 59 of the Rent Act, and to sell the tenure. But it wasfound on examination of the documents that as a fact he had elected not toproceed to sell the tenure but to sell the interest of the debtor. Accordingly,the title of the purchaser was good only to the extent of the interest of thedebtor.

9. The present case is stronger, because it is not the caseof a person who had a right to sell the tenure (assuming the facts to be asalleged), but of a person who had no right to sell anything beyond the interestof the debtor. If, therefore, the fact be that the defendant who brought therent suit was no more than a shareholder in the zamindari rights, he could notsell the tenure. And we think it clear in point of law that, if the plaintiffprove his title, then the purchaser-defendant took no right as against him bythe sale.

10. These are the only points on which we think it necessaryto express our opinion.

11. The case must go back to the lower Appellate Court.There is no express finding that what was sold was sold in execution of adecree obtained by an 8-anna sharer. It is so stated in the plaint andcertainly by implication in "one at least of the written statements. Andit is stated that the evidence is all one way, but there is no finding upon it;therefore, the facts must be found by the lower Appellate Court. The lowerAppellate Court will then consider the case on the merits-that is to say, itwill find whether the plaintiff has established his title either under thealleged transfer to him, or by having been recognized as tenant by receipt ofrent or otherwise, or by the length of his occupation or on any other ground.And if it be that the sale which took place, and at which the defendantpurchased, was a sale in a suit by an 8-anna sharer, then as a matter of lawthe title of the plaintiff will prevail.

12. The appellant will have the costs of this appeal. Thecosts in, the Court below will be dealt with by the Court below.

.

Kristo Chunder Ghose and Ors. vs. Raj Kristo Bandyopadhya and Ors. (08.07.1885 - CALHC)