A covenant running with the land is a covenant that is binding on the successors-in-title of the covenantee or the covenantor, as the case may be, and that affects the nature, value, or rent of the land.

K.Ahmad, J.

1. In this appeal the only question raised is how far a covenant by a lessee in a registered document of lease to pay zare chaharam to the lessor in case of any sale or transfer by him of that leasehold interest is binding on and enforceable against his assigns and transferees.

2. The facts giving rise to this case are now practically admitted and they are as follows. There was one Kanhaiya Prasad Sahu, who, on the records of this case, is represented after his demise by his son, the plaintiff respondent first party. He was the sixteen annas proprietor and landlord of village Mohammadpur Kazi in the town of Muzaffarpur hearing tauzi No. 11093. Therein he owned and possessed certain zirat and bakasht lands. Out of them, about 9 kathas of zirat and bakasht lands were settled by him with one Basanto Kumar Chatterji, the father of the defendants respondents second party, under two sets of registered pattas and kabuliats dated 28-6-26 and 1-7-27.

The patta and kabuliat corresponding to 28-8-26 have been marked on the record as exhibits 1 and 1/a while those corresponding to 1-7-27 have been marked as exhibits A and A/1 respectively. Under the former the area given in lease was 7 kathas and that was for a recompense of Rs. 24/8/- as rental and Rs. 1,400.00 as nazarana while in the latter area covered was 2 kathas and it was for a consideration of Rs. 800.00 as nazarana and Rs. 8/- as rent.

The common term with which we are concerned in this case under these documents is that in case of sale or transfer by the lessee of the leasehold interest to a person other than the lessor, the lessor was to get from the transferee a sum of Rs. 350/-under the first lease and a sum of Rs. 200.00 under the second lease; and as these amounts work out exactly to oner-fourth of the aforementioned nazarana amounts, they are described in the plaint as zare chauth. Further, it appears that; though the lands given under the aforesaid demises were zirat and bakasht, the purpose for which they had been let out was not agricultural but non-agricultural, namely, the construction of residential quarters on them; and it is not denied that the lessee on his entry thereon did construct a house there and lived therein so long as he had not parted with his lease interest. Thereafter in 1946 the lessee assigned his interest in those lands to the defendant appellant along with the structures erected thereon who is now in possession of it.

On these facts, the two courts below have concurrently found -- and I think rightly -- that the lease having been given for a purpose non-agricultural is governed by the Transfer of Property Act and not by the Bihar Tenancy Act; and, as this part of the case is not any more in controversy, I need not go into it any further. Here the only grievance made on behalf of the transferee is that he being not a party to the original contracts of lease dated 28-6-26 and 1-7-27 is not liable for any covenant made thereunder for the payment of zare chaharam and therefore the finding given by the courts below contrary to it is wrong in law. In other words, his contention is that "the stipulation on which the plaintiff based his claim was a personal covenant and not one running with the land and consequently the assignee from the lessee would not be bound by it."

As against this, the opposite view advanced by Mr, Chatterjee appearing for the landlord plaintiff is that, though a covenant like the one under consideration is not covered by any of the two clauses in sec. 40 of the Transfer of Property Act (as held in Sri Thakurji Maharaj V/s. Lachmi Narain, 19 Ind Cas 67 (All) (A)), nevertheless it being one between landlord and tenant is as much binding on the third party transferee as on the original lessee himself. Now it cannot be denied that the general principle is that a personal covenant, even though it may have reference to property, is binding only as between the parties thereto and their privies. In other words, as a rul