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Judgment
Coutts, J.—This appeal arises out of a suit for rent brought by a co-sharer proprietor against a number of tenants. The plaintiff''s other co-sharers were also impleaded as defendants. A number of pleas were taken by the defendants, but the issue on which the suit was decided against the plaintiff was that the suit was not maintainable by the plaintiff without registration as provided in Section 11 of the Chota Nagpur Tenancy Act. On appeal to the Judicial Commissioner the decree of the Munsif was confirmed and the plaintiff has now appealed to this Court.
Two points have been urged in this case: (1) that Section 11 of the Chota Nagpur Tenancy Act is not a bar to the suit, and (2) that the onus was on the defendant to prove non registration.
It is convenient to deal with the last point first. The learned Vakil for the appellant relies on the case of Surangini Dasi v. Nekaraddi Mullick 23 Ind. Cas. 844, in which it was held that in a case u/s 78 of the Land Registration Act the onus was on the defendants to prove non-registration, I am doubtful whether the question was really considered in that case; but even if it was, Section 78 of the Land Registration Act is very different from Section 11 of the Chota Nagpur Tenancy Act. Section 78 is to the following effect:
No person shall be bound to pay rent to any person claiming such rent as proprietor or manager of an estate or rent-free property in respect of which be is required by this Act to cause his name to be registered, or as mortgagee unless the name of such claimant shall have been registered under the Act.
By Section 11 of the Chota Nagpur Tenancy Act. however, it is enacted that the transferee shall not be entitled to recover unless registration is made in conformity with the section; and it seems clear that where the plaintiff''s title to recover is questioned on this ground, the onus is on him.
I now some to the first point. If the above view is correct, the plaintiff must establish that the registration has been effected within one year from the date of the transfer and that the registration fee has been paid or tendered with in that period. It has been found as a fact by both the Courts below that neither has there been registration within the period of one year from the date of transfer nor has the registration fee been paid or tendered. It seems clear then from the section itself that the suit is not maintainable. It is argued, however, on the authority of Munshi Ram Sahi v. Kheman Mahto 38 Ind. Cas. 59 : (1917) Pat. 63 : 1 P.L.W.571 that the plaintiff may sue and may even obtain a decree which he can execute after registration. There is certainly a remark in the judgment of Atkinson, J., which gives support to this contention: but it is obiter and seems to have been based on an argument not with reference to the Chota Nagpur Tenancy Act but with reference to the Bengal Tenanay Act, in which the provision is entirely different. If that view were correct, either the provisions of clause of Section 11 become a nullity or a decree can be obtained which could not be executed because the provisions of the section could not be complied with. I am unable to conceive that the Legislature could have intended to enact that it should be possible to obtain a decree which under no possible circumstances could be executed. The words of the section are perfectly clear and where this is sO, we are not entitled to go behind them.
I would dismiss this appeal with costs.
Macpherson, J.
I entirely agree that this appeal must be dismissed with costs, The view expressed in the penultimate paragraph of the judgment in Munshi Ram Sahi v. Kheman Mahto 38 Ind. Cas. 59 : (1917) Pat. 63 : 1 P.L.W.571 is obiter and has always been so considered. And indeed the interpretation of Section 11(4) is quite straightforward. If the transferee of a tenure or a portion thereof makes the required application for the registration of the transfer and tenders the authorized registration fee within a period of one year from, the date of transfer, there is no bar to recovery by him of rent from the date of his transfer, but if he fails to make such application and tender within that period, he shall not recover by any process known to law any rent accruing between the date of transfer and the date of any subsequent application for registration. No application for registration made after the expiry of one year after the date of the transfer has any retrospective operation. This view has also been expressed by Holmwood, J, in Angnu Ghasi v. Chuthu Patras 27 Ind. Cas. 605 : 19 C.W.N. 461. It has been found in this case as a fact that the appellant had not made the requisite application before the expiry of the period in respect of which he sued for rent and accordingly he is debarred from recovering by suit any part of that rent for which he sues.
I agree with my learned brother that the onus to prove the requisite application for registration in time to entitle him to the rent claimed, or any portion thereof, is on the plaintiff, both because of the form of the enactment in Section 11(4) and because the date of application is specially within plaintiff''s knowledge.
Chota Nagpur Tenancy Act (VI of 1908), Section 11 (4) - Transfer of tenure--Suit for rent by transferee--Registration--Burden of proof.
Courrs,J.
This appeal arises out of a suit for rent brought by a co-sharer proprietor against a number of tenants. The plaintiff''s other co-sharers were also impleaded as defendants. A number of pleas were taken by the defendants, but the issue on which the suit was decided against the plaintiff was that the suit was not maintainable by the plaintiff without registration as provided in Section 11 of the Chota Nagpur Tenancy Act. On appeal to the Judicial Commissioner the decree of the Munsif was confirmed and the plaintiff has now appealed to this Court.
Two points have been urged in this case: (1) that Section 11 of the Chota Nagpur Tenancy Act is not a bar to the suit, and (2) that the onus was on the defendant to prove non registration.
It is convenient to deal with the last point first. The learned Vakil for the appellant relies on the case of Surangini Dasi v. Nekaraddi Mullick 23 Ind. Cas. 844, in which it was held that in a case u/s 78 of the Land Registration Act the onus was on the defendants to prove non-registration, I am doubtful whether the question was really considered in that case; but even if it was, Section 78 of the Land Registration Act is very different from Section 11 of the Chota Nagpur Tenancy Act. Section 78 is to the following effect:
No person shall be bound to pay rent to any person claiming such rent as proprietor or manager of an estate or rent-free property in respect of which be is required by this Act to cause his name to be registered, or as mortgagee unless the name of such claimant shall have been registered under the Act.
By Section 11 of the Chota Nagpur Tenancy Act. however, it is enacted that the transferee shall not be entitled to recover unless registration is made in conformity with the section; and it seems clear that where the plaintiff''s title to recover is questioned on this ground, the onus is on him.
I now some to the first point. If the above view is correct, the plaintiff must establish that the registration has been effected within one year from the date of the transfer and that the registration fee has been paid or tendered with in that period. It has been found as a fact by both the Courts below that neither has there been registration within the period of one year from the date of transfer nor has the registration fee been paid or tendered. It seems clear then from the section itself that the suit is not maintainable. It is argued, however, on the authority of Munshi Ram Sahi v. Kheman Mahto 38 Ind. Cas. 59 : (1917) Pat. 63 : 1 P.L.W.571 that the plaintiff may sue and may even obtain a decree which he can execute after registration. There is certainly a remark in the judgment of Atkinson, J., which gives support to this contention: but it is obiter and seems to have been based on an argument not with reference to the Chota Nagpur Tenancy Act but with reference to the Bengal Tenanay Act, in which the provision is entirely different. If that view were correct, either the provisions of clause of Section 11 become a nullity or a decree can be obtained which could not be executed because the provisions of the section could not be complied with. I am unable to conceive that the Legislature could have intended to enact that it should be possible to obtain a decree which under no possible circumstances could be executed. The words of the section are perfectly clear and where this is sO, we are not entitled to go behind them.
I would dismiss this appeal with costs.
Macpherson, J.
I entirely agree that this appeal must be dismissed with costs, The view expressed in the penultimate paragraph of the judgment in Munshi Ram Sahi v. Kheman Mahto 38 Ind. Cas. 59 : (1917) Pat. 63 : 1 P.L.W.571 is obiter and has always been so considered. And indeed the interpretation of Section 11(4) is quite straightforward. If the transferee of a tenure or a portion thereof makes the required application for the registration of the transfer and tenders the authorized registration fee within a period of one year from, the date of transfer, there is no bar to recovery by him of rent from the date of his transfer, but if he fails to make such application and tender within that period, he shall not recover by any process known to law any rent accruing between the date of transfer and the date of any subsequent application for registration. No application for registration made after the expiry of one year after the date of the transfer has any retrospective operation. This view has also been expressed by Holmwood, J, in Angnu Ghasi v. Chuthu Patras 27 Ind. Cas. 605 : 19 C.W.N. 461. It has been found in this case as a fact that the appellant had not made the requisite application before the expiry of the period in respect of which he sued for rent and accordingly he is debarred from recovering by suit any part of that rent for which he sues.
I agree with my learned brother that the onus to prove the requisite application for registration in time to entitle him to the rent claimed, or any portion thereof, is on the plaintiff, both because of the form of the enactment in Section 11(4) and because the date of application is specially within plaintiff''s knowledge.