Chamier, C.J:— The first appellant who is the owner of a large indigo concern, is mokararidar of Mauza Madhuba Bendiban in which one Khedu Rai had a occupancy holding of about 8 bighas.
2. In 1902 Khedu Rai sold 5 bighas of his holding to the respondent and placed his in possession. In 1913 Khedu Rai die without heirs. Appellant 1 then too possession of the 3 bighas which had re mained in Khedu Rai's possession and ??? the 5 bighas to appellants 2 and 3. The respondent having refused to give ??? possession the present suit was brought. The respondent admitted that there was no custom in the village justifying the transfer of an occupancy holding, but he pleaded that appellant ??? through his manager had expressly consented to the transfer before it was effected and had also recognized it subsequently. The respondent's sworn statement that he obtained the express consent of the manager was contradicted by the manager and has been disbelieved. But both the Courts below have held that the transfer was subsequently recognized. The evidence of recognition consists of (1) four receipts for the payment of rent by the respondent, (2) a letter from one put wart to another stating that the rent of the 5 bighas would be paid by the respondent (Ex. A-1), (3) an order of the Assistant Manager of an outlying subagency allowing him to out down a dry tree standing on the land and (4) the face that the respondent grew indigo on par of the land and sold it to the mokararidar.
3. The evidence falling under heads (3) ad (4) appears to me to be of no importance whatever. The order of the Assistant Manager regarding the tree seems to ave been passed as a matter of course without any inquiry and without any intention of thereby recognizing any right a the respondent as transferee of the holding. The tree was sold for 8 annas, of which 4 annas were paid to the mokararidar. The some order would probably ave been passed if the respondent had and sub-tenant of the plot. The respondent in his evidence admitted that the ??? was ‘grown in Kliedu Rai's name’ and that the indigo account was in the me name. As regards the receipts it must be noted that the respondent's name as never entered in the books of the mokararidar. Khedu Rai's name alone appeared in those books and all sums received were credited to him alone. The patwari at the sub-agency is found to we given the respondent in the course of 1 years 4 receipts of which one is in the name of “Khedu Rai marfat Sheogobind Shah baidar”, another is in the name of “Khedu Rai marfat Sheogobind Shah baidar”, and the remaining two are simply ??? favour of Sheogobind Shah. The respondent's own account of the payment of ??? is, “all the rent was paid in the name of Khedu Rai and receipts were ranted in his name.” This statement news that he was well aware that Khedu Rai alone was treated as the tenant of the ??? There is no evidence as to the occasion on which the letter (Ex. A-1) as written. Patwaris are interested in recovering rent for their masters and are probably only too glad to receive the rent room any one claiming to represent the recorded tenant. The letter in question seems to have been intended only to help ??? brother patwari to recover the rent of the holding.
4. The evidence of the manager, which has been accepted, shews that he cannot ??? had any intention of recognizing the transfer for he was not even aware of it. ??? I had to decide this case as a Court. ??? first appeal I should not have hesitated ??? hold that the landlord's consent to the transfer had not been established. But is this case comes before us in second appeal was must accept the findings of ??? if any, recorded by the lower appellate Court, and it has been suggested by ??? learned vakil for the respondent that the finding of the District Judge that the landlord consented to the transfer is a find, of fact. The finding of the District Judge is that express consent by the landlord has not been proved but that consent by his authorized agent has been proved. I take it that the learned Judge is referring to the patwari and the Assistant Manager. So far as the order of the Assistant Manager is concerned, I hold that its, does not amount to consent to the transfer whatever his authority may have been. Assuming that the receipts granted by the patwari show that he himself consented to the transfer, we have to see whether he had authority to consent to the transfer on behalf of the landlord. The position and duties of a patwari are well-known.
5. He is a poorly paid underling employed only to collet rents done to his master and to grant receipts for the same. His implied authority would extend to all subordinate acts which are necessary or incidental to his express authority. It is not suggested that he had authority to manage any part of the property. In my opinion it is not within the scope of the authority of a rent collector to consent on behalf of his master to the trans of an occupancy holding. That is an important act to be performed only by a person having some at least of the powers of a manager. I cannot accept the suggestion which has been made that it lay on the landlord in this case to prove that, the patwari had not authority to consent, to the transfer. Landlords would be in a very difficult position if it were held that, patwari and other underlings should be presumed, till the contrary is shewn, to have the power to sign away their masters rights, Nor, in my opinion, do the receipts thew that even the patwari himself consented to the transfer.
6. Two of these shew only that on two, occasions in the course of 11 years he accepted rent from the respondent. The other two seem to me to shew that the patwari intended to give credit for the payment to Khedu Rai alone. In my opinion the evidence which has been accepted by the District Judge in this case does not she ??? that the first appellant consented to the transfer to the respondent. I would, therefore, allow this appeal and decree the claim for possession with costs in all three Courts. The Court of first instance should ascertain the amount of mesne profits due to the appellant and pass a decree for the same.
7. Kingsford, J.:— I agree that this appeal should be allowed. It appears that in the year 1902 Khedu sold to the defendant 5 bighas out of 8 bighas which comprised the holdings. Thereafter the defendant, according to his rent receipts, paid the proportion of the rent for which Tinder the deed of sale he was liable. There was, therefore, a division of the holding and a distribution of the rant, which under the provision of Section 88 of the Ben. Ten. Act, were not binding upon the landlord because not made with his express consent in his writing. On the contrary it appears that the landlord expressly-refused to enter the defendant's name in the jamabandi.
8. The rulings relied upon by the learned vakil for the respondent are not applicable to this case. Those of Bharut Ray v. Ganga Narain Mohapattur(1) and Ooma Churn Banerjee v. Bai Luclchee Dehia(2) are previous to the passing of the Act. That of Pyari Mohun Mukhopadhya v. Gopal Paik(3) deals with a case where the receipts themselves showed that the tenant's name had been registered in the landlord's sherista. In Abinash Chandra Chowdhury v. Purnananda Khan(4) the receipts were held to amount to express consent to the sub-division, because they indicated that the allotment of different shares and apportionment of the rent had received the landlord's approval. The present case is dearly distinguishable, since the receipts cannot be construed as a consent nor do they suggest any inference that there was a consent and as a matter of fact consent had been refused.
V.S/R.K
9. Appeal allowed.