JUDGMENT
Das, J.
1. The plaintiff is the proprietor in respect of the land of which the defendant is a tenant. Admittedly he has been recorded as the proprietor in the Land Registration Department. He brought a suit for recovery of arrears of rent from 1320 to 1323 and was met with the defence by the tenant that he had paid rent to the mortgagees in possession. This defence found favour with the Courts below, with the result that they have dismissed the plaintiff’s suit.
2. In this Court the learned Vakil appearing on behalf of the appellant urges that under Section 60 of the Bengal Tenancy Act the tenant was not entitled to plead any defense to a claim by the person registered as the proprietor under the Land Registration Act of 1876 that the rent is due to any other person. In my opinion this contention is well-founded and must prevail. The whole object of Section 60 of the Bengal Tenancy Act is to give to a registered proprietor facilities for recovering rent and to prevent tenants from setting up a false and fictitious defence by pleading that a third person not registered was entitled to receive rent. [See the case of Sakari Datta v. Ainuddy 6 Ind. Cas. 336 : 12 C.L.J. 620 at p. 622 : 14 C.W.N. 1001.] The defence put forward in this case by the tenant is calculated, in my opinion, to perpetuate the mischief which it was the intention of Section 60 of the Bengal Tenancy Act to prevent. The case reported as Hem Chunder Misri v. Rajah Sir Sourindra Mohan Tagore 5 C.W.N. 482 is in favour of the appellant.
3. The Court below, however, relied upon two oases. The first of that is reported as Durga Das Hazra v. Samash Akon 4 C.W.N. 606. It seems to me that that case was decided upon the findings of facts arrived at by the final Court of facts dealing with that case. The learned Judges in that case say: ‘We think that on the findings of fact arrived at by the learned District Judge the provisions of Section 60 are not applicable to the present case. The Judge finds that the plaintiffs ceased to he in possession of the land in respect of which they claim rent some four years prior to suit, that is to say, since the defendant in good faith attorned to the Poddars and commenced to pay them rent, and we are unable to Bee any error of law in this finding.” It is clear, therefore, that so far as Durga Das Hazra v. Samash Akon 4 C.W.N. 606 was concerned, that decision was given on the findings of fact of the lower Appellate Court. The other case relied upon by the lower Appellate Court is the case of Girish Chandra Chongdar v. Satish Chandra Sarkar 12 C.W.N. 622. It was held in that case that Section 60 of the Bengal Tenancy Act does not preclude a tenant defendant from proving that the title under which the plaintiff claims to hold and in respect of which he has been registered under the Land Registration Act has been held by a Court properly constituted to be void and of no effect. The plaintiff in that case claimed to realise rent from the tenant. He was undoubtedly registered as the proprietor in the Land Registration Department. But in a case which was fought out between the plaintiff and another party it was established in a Court of competent jurisdiction that the plaintiff had no title to the land. It appears to me that that case is distinguishable from the present case. In this case no Court has held that the plaintiff has no title to the land. In other words, his title, as the proprietor of the land, is admitted but all that is urged before me is that although the plaintiff is undoubtedly the proprietor of the land, still as there is a mortgagee in possession it is the mortgagee in possession who is entitled to rent from the defendant. In my opinion it is not for the tenant to decide as to whom he must pay rent. Plaintiff is the registered proprietor and under Section 60 of the Bengal Tenancy Act the tenant must pay rent to the registered proprietor. Of course as between the registered proprietor and the mortgagee in possession the question remains an open one and the mortgagee in possession clearly, if he can prove his title, has a remedy against the registered proprietor. I hold, therefore, that the plaintiff is entitled to rent from the defendant for 1320 to 1323. The learned Vakil on behalf of the respondent states before me that there is no dispute as to the amount of rent, I would, therefore, allow this appeal, set aside the judgments and decrees of the Courts below and in lieu thereof give a decree to the plaintiff for the amount claimed by him in the suit. The plaintiff is entitled to his costs throughout.