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Calcutta High Court
Syed Hossein Mujtaba And Ors. vs Ram Subhag Singh And Ors. on 15 November, 1909
Equivalent citations: 5 Ind Cas 163
Bench: Holmwood, Chatterjee


JUDGMENT

1. The question of law which arises in this case is, when reduced to its simplest terms, merely this: Whether a registered proprietor can sue for and obtain a decree for rent in the face of an unexpunged entry in the register in the name of a former mortgagee. We need only point out that there is nothing in Section 60 of the Bengal Tenancy Act which acts as a bar to such a suit and decree. It is true that the defendants tenants might plead an acquittance from the registered mortgagees against the recorded proprietors, but they do not do so in this case. It is found and does not appear to be disputed that the mortgagees have no present interest in the property and that the plaintiffs proprietors are in sole possession. A purely technical bar is pleaded under Section 60 of the Bengal Tenancy Act and under that section the registered proprietor is clearly entitled to sue and is entitled to a decree for the rent. The tenants produced no receipt such as is contemplated by Section 60, so that there can be no defence to the plaintiffs’ suit. The short note from the Calcutta Weekly Notes Sunder Das v. Charitter Roy 1 C.W.N. clxiii is not any authority; but so far as appears from the summary it has no application to this case. As regards the cases cited by the learned Judge of the lower Court, the one in 5 Calcutta Weekly Notes Hem Chunder Misri v. Rajah Sir Sourendra Mohan Tagore 5 C.W.N. 482, seems to us to rather favour the plaintiff’s contention and the judgment of Mr. Justice Geidt in 8 Calcutta Weekly Notes Sadhu Charan Pal v. Radhika Mohan Roy 8 C.W.N. 695 is not upon this point at all and has no bearing on the question before us.

2. It is contended that there is a provision under Section 23 of the Land registration Act for the expunging of the name of a mortgagee after redemption and no doubt it would have been and still is the proper course for the plaintiffs that the mortgagees names are expunged. But there is no such penalty attaching to their omission as is sought to be read into section 60 of the Bengal Tenancy Act.

3. The appalls must, therefore, succeed and the judgments and decrees of the lower Court are discharged with costs.

4. The case will go back to the Court of first instance for a determination of the other issues raised in the case.

5. The stamp fee to be refunded, the decision on preliminary issue being set aside.


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