Patna High Court
Shiba Das vs Gajendra Nath Das on 18 July, 1917
Equivalent citations: 44IND. CAS.593, AIR 1918 PATNA 416
JUDGMENT
1. The plaintiff in this suit seeks to eject the defendant from the land in suit of which he is in occupation as an under-raiyat.
2. The facts shortly are as follows: The plaintiff purchased the occupancy right in the land in suit at a rent-sale held on the 1st of February 1915. The original tenant fell into arrear in the payment of his rent; and one of the co-sharer landlords instituted a suit for the recovery of the arrears of rent due, making the other co sharer landlords defendants with the tenant, and obtained a decree for, it is alleged, part of the total rent. We must take it, having regard to the course which the case has pursued in both the lower Courts, that the decree which was obtained in the suit against the original tenant was a rent decree; and that the sale which took place on the 1st of February 1915 was a sale in pursuance of a rent decree. At the sale the plaintiff became the purchaser of the occupancy interest in this holding. At the date of sale there was on the holding an under-raiyat who was in possession of the entire holding and who is now the defendant in this' suit. The holding was about 10 to 11 acres in area; and the learned Deputy Collector has found that the entire holding of the original tenant was sold at the sale held on the 1st of February 1915. The present plaintiff seeks to eject the defendant from the lands in suit relying upon Section 57 of the Orissa Tenancy Act; and he alleges that be has served the notice required by Section 57 of the Orissa Tenancy Act upon the under-raiyat and that therefore he is entitled to maintain this action for ejectment.
3. The case put forward by the defendant, the under-raiyat, is that this action is not maintainable having regard to the special provisions of Section 215 read in conjunction with Sections 220 and 221 of the Orissa Tenancy Act.
4. The learned Collector, disagreeing with the opinion of the Deputy Collector, has held that the plaintiff is entitled to seek relief under Section 57. The Deputy Collector on the contrary held that the provisions of Section 57 did not apply; and that the rights of the parties were governed by the true interpretation of Sections 220 and 221 of the Orissa Tenancy Act.
5. Section 215 of the Orissa Act defines what an "incumbrance" is; and undoubtedly an under-raiyat in occupation of land is an incumbrancer upon such land within the meaning of Section 215 of the Orissa Tenancy Act, and upon this point there seems to be no controversy. Therefore, we may take it that over the lands in suit there was an incumbrance to the extent of the interest of the under-raiyat therein. That being so, Sections 220 and 221 regulate in what way and in what manner the incumbrance can be got rid of by an auction purchaser. He is not in the same position as the original intermediate landlord, viz., the original tenant. The Act has provided that his rights are to be something less. But it appears that if an auction-purchaser desires to annul an incumbrance, the Act specifically prescribes what steps are to be taken by him for doing so and the Act is careful to specify that by no other steps and by no other means can the incumbrance be annulled or got rid of. Section 220, Sub-section (2), runs as follows:
The purchaser at a sale under this section may, in manner provided by Section 221, and not otherwise, annul any incumbrance on the holding.
6. I take that section to mean that it is incumbent upon the auction-purchaser, if he desires to annul an incumbrance, to follow strictly the procedure prescribed by the section. Section 221 prescribes that when a purchaser desires to annul an incumbrance he must do so by serving a notice within one year from the date of sale, or the date upon which he first had notice of the incumbrance, through the Collector upon the incumbrancer. Now it is not contended here for one moment that the procedure prescribed by Section 221 was followed. On the contrary, it is contended by the plaintiff that he has served a notice within the meaning of Section 57 and that no other notice is necessary, and that he is entitled to maintain the present suit. This is a case of first impression; but it appears to us upon a fair and reasonable interpretation of the Orissa Tenancy Act that what was intended was that a purchaser at an auction sale had one, and only one, remedy open to him for annulling an incumbrance, namely, that prescribed by Section 221; and that in cases where this remedy is not followed and a year is allowed to elapse by the purchaser without taking steps to annul the incumbrance affecting the lands or interest he has purchased, the purchaser is not entitled to eject the under raiyat under Section 57 of the Act. No doubt, if the purchaser did take the steps open to him to annual the incumbrance and the under-raiyat refused to give up possession consequential thereon, the under-raiyat could be ejected as a trespasser under Section 57 of the Act; but if, as in this case, the purchaser does not avail himself of the only remedy which is open to him he is not entitled to eject the under-raiyat in any other way. The opinion which we have formed corresponds with the interpretation given to the corresponding enactment in the Bengal Tenancy Act in Janaki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 898 : 43 C. 178 : 22 C.L.J. 99 : 19 C.W.N. 1077.
7. We think that the conclusion at which the learned Deputy Collector arrived was right. No doubt his judgment leaves much to be desired as to its form- and method of expression; but upon a careful consideration of the law and the facts we think that he was right in dismissing the plaintiff's suit.
8. We accordingly set aside the order of the lower Appellate Court and allow this appeal with costs.