MOHAMMAD WALIUR RAHMAN Vs. MTSITA KUER

JUDGEMENT

(1.) This second appeal arises out of a suit for arrears of rent along with a claim for enhancement of rent under Section 30(b), Ben. Ten. Act. Both the claims were decreed by the trial Court but dismissed by the Court of appeal below. The plaintiff is the sole recorded proprietor of an estate bearing Tauzi No. 12618 of village Asafpore Sultanpore which was formed after a collectorate partition in the year 1321 fasli. The holding in suit measures 2 decimals 53 acres. It originally belonged to one Budhan Mahton. It was sold in execution of a rent decree and purchased by Bhagwat Sahai, defendant 3.

(2.) Thereafter the proprietary interest of the plaintiff in this holding alone was sold in execution of a decree in favour of Bhan Prasad, husband of defendant 1, and Mt. Ramdulari Kuer, sister of the said Bhan Prasad, and purchased by the decree-holders. The plaintiff's case was that the real purchaser of the holding was not defendant 3 but defendants 1 and 2. This case was disbelieved by both the Courts below who have held that defendant 3 was the real purchaser and raiyat of the holding. Nothing further need be said on this part of the case. The main contention of the defendants was that by the sale of the proprietary right of the land covered by the holding the plaintiff ceased to be the landlord of that portion of the village and rent was not due to him, but to the defendants 1 and 2 and was paid to them. They contended that in spite of the fact that the plaintiff alone was recorded for the entire 16 annas of this estate he was not entitled to get a decree in respect of the rent of the holding in question. This was overruled by the learned trial Court on the ground that Section 60, Ben. Ten. Act, precludes defendant 3 from raising this plea.

(3.) The learned Subordinate Judge however has reversed that decision and has dismissed the suit. The plaintiff has preferred this appeal. The main question involved in this appeal is as I have said, whether the plaintiff on the strength of his being a registered proprietor for the entire estate can realize rent of this holding in spite of the fact that his proprietary interest in respect of the land of this holding was sold in execution of a decree, in other words, whether defendant 3, the tenant of the land, can be permitted to raise the plea that rent was due not to the plaintiff but to defendants 1 and 2. The names of defendants 1 and 2 are admittedly not registered in the Land Registration Department.