Patna High Court
Sm. Radha Peary Kuer And Anr. vs Gopal Saran And Ors. on 17 January, 1951
Equivalent citations: AIR1951PAT532, AIR 1951 PATNA 532, ILR 30 PAT 274
JUDGMENT Rai, J.
1. This is an appeal by defts. 1 & 5 against the judgment & the decree passed by the third Addl. Subordinate Judge of Gaya reversing those of the Munsif of Jehanabad.
2. The pltfs. filed the suit for a declaration that the Mokarrari & usufructuary mtge. interest relating to the said Mokarrari interest or any other encumbrance as alleged by the defts. against them who were the purchasers at a revenue sale be annulled. They further prayed for recovery of sir possession over eight annas share of tauzi No. 4060 by annulling & avoiding all encumbrances of all sorts over the same. They further claimed past & future mesne profits from the date of the suit till the recovery of possession as also the floats of the suit.
3. The case of the pltfs. as set out in the plaint was that village Sarthua Ratanpore alias Birpore original tauzi No. 4060 was partitioned under the Estate Partition Act in the year 1919 by which ten separate tauzies were carved out of the parent tauzi. One of the newly carved out tauzies retained the original tauzi No. 4060. The newly formed tauzi No. 4060 fell in arrears of revenue which resulted in its sale and purchase by the pltfs. by an auction sale held in June, 1937. The purchase was made in the name of pltf. 1 as the Karta of the joint family of the pltfs. The revenue sale was confirmed on 18-8-1937. The auction purchaser after obtaining the sale certificate got delivery of possession on 23-12-1937. The case of the pltfs. further was that when they wanted to take sir possession of the tauzi they were resisted by the defts. from realizing rent from the raiyats to the extent of eight annas share on the ground that the latter were mokarraridars in respect of the said eight annas share since long before the date of the revenue sale. The defts. claimed their interest in the property as permanent mokarraridars as well as usufructuary mtgees. of the interest of some of the Mokarraridara. The pltfs. further alleged that by virtue of the revenue sale they acquired interest in the entire tauzi No. 4060 free from all encumbrances. They impleaded in the action persons interested in the said eight annas Mokarrari interest & their mtges.
4. Three sets of written statement were filedin the suit, one by deft. 1, another by deft. 6 the third by deft. 7. In her written statement deft. 1 pleaded inter alia that the suit was bad for misjoinder & non-joinder of parties. According to her, unless all the proprietors of the old parent tauzi No. 4060 or their representatives in interest & the sixteen annas mokarraridara be impleaded In the action, the same was liable to fail. She further contended that defta. 2 to 4 & deft. 7 hadno interest in the suit property & as such they should not have been impleaded as party defts. In the action. She further claimed that she had exclusively inherited six annas of the Mokarrari interest which belonged to her maternal grandmother. She further pleaded that the revenue sale was without jurisdiction. Another plea taken by her was that the Mokarrari interest as created in the original tauzi No. 4060 was spread over the entire ten tauzies formed by the collectorate partition & therefore, the pltfs. were not entitled to bring the present action for annulment of a portion of the Mokarrari interest. She, on these & other allegations, claimed that the suit was fib to be dismissed.
5. Defendant 6 disclaimed all interest in the properties in dispute. According to him, deft. 7 in fact was the owner of two annas Mokarrari interest out of eight annas share in dispute.
6. Defandant 7 on her part resisted the suit of the pltf. on all the grounda taken by deft. 1. She further contended that she was the owner of the two annas Mokarrari interest & that deft. 6 had nothing to do with it.
7. The trial Ct. came to the conclusion that the Mokarrari interest had in fact been created long before the colleetorate partition of original tauzi No. 4060 as was the ease of the contesting defts. It further held that the present suit as framed was not maintainable as the pltfs. were not entitled to claim avoidance of a portion of the old Mokarrari interest. On these & other findings the trial Ct. dismissed the suit with costs.
8. On appeal the lower appellate Ct. accepted the ease of the defts. regarding the existence of the Mokarrari interest. It also accepted the case of the defts. that the Mokarrari interest as originally created had not been split up by the colleetorate partition. On the question of maintainability of the suit, however, it came to a different conclusion than that arrived at by the trial Ct. Relying upon the F. B. decision of the Calcutta H. C. in the case of Khamankari Dasi v. Harsha Muhhi Dasi, 47 c. w. N. 582 : (A. I. R. (30) 1943 Cal. 345 F B.) it held that the pltfs. were entitled to annul the Mokarrari interest that fell within the new tauzi No. 4060 & it was not necessary for them to implead in the action the proprietors of other tauzis; nor was it necessary for them to implead the mokarraridara who were interested in the Mokarrari interest of the tauzis other than the one in suit. On these findings, the suit of the pltfs. was decreed by the lower appellate Ct. with costs. Hence, the above mentioned second appeal.
9. It may be mentioned at this stage that during the pendency of the second appeal, Sm. Radha Peary Kuer one of the original applts. died & in her place her minor son Dhurup Narain Singh has been substituted.
10. Mr. Lalnarain Sinha learned counsel for the applts. has contended before us that Section 37, Bengal Land Revenue Sales Act, 1859 (Act xi [11] of 1859) as quoted below does not authorise the pltfs. to claim annulment of a portion of the Mokarrari interest :
"The purchaser of an entire estate in the permanently settled distriots of ( Bengal, Bihar & Orissa, sold under this Act for the recovery of arrears due on account of the same shall acquire the estate free from all encumbrance which may have been imposed upon it after the time of settlement; & shall be entitled to avoid & annul all under-tonures & forthwith to eject all under-tenants, with the following exceptions :
First : Istimrari or mukarrari tenures which have been held at a fixed rent from the time of the permanent settlement.
Secondly : Tenures existing at the time of settlement which have not been held at a fixed rent:
Provided always that the rents of such tenures shall be liable to enhancement under any law for the timebeing in force for" the enhaneement of the rent of such tenures.
Thirdly--Talukdari & other similar tenures created since the time of settlement & held immediately of the proprietors of estate & larms for terms of years so held, when suoh tenures & farms have been duly registered under the provisions of this Act.
Fourthly Lease of lands whereon dwelling houses, manufactories, or other permanent buildings have been erected or whereon gardens, plantations, tanks, wells, canala, places of worship or burning or burying grounds have been made or where in mines have been sunk. And such a purchaser as is aforesaid shall be entitled to proceed in the manner prescribed by any law for the time being in force for the enhancement of the rent of any land coming within the fourth class of exceptions above made, if he can prove the same to have been held at what was originally an unfair rent, & if the same shall not have been held at a fixed rent, equal to the rent of good arable land for a term exceeding twelva years, but not otherwise:
Provided always that nothing in this section contained shall be con-trued to entitle any such purchaser as aforesaid to eject any raiyat, having a right of occupancy at a fixed rent or at a rent assessable according to fixed rules under the laws in force, or to enhance the rent of any such raiyat otherwise than in the manner prescribed by auch laws, or otherwise than the former proprietor, in respectively of all engagements made since the time of settlement, may have been entitled to do."
He has further contended that on the findings, of the Cts. below an impossible position will be created if the pltfs suit were to be decreed, because it will not be possible to split up the Mokarrari rent of the remaining unannulled share. He has further contended that we should prefer to follow the decision of a single Judge of this Ct. in an unreported case, namely, Mahbub Ali v. Radha Peary Kuer, S. A No. 829 of 1940, D/- 25-11-1941, where the learned Judge had followed the decisions of the Calcutta H. C. reported in Sooha-ram Barma v. Deorga Charan, 5 C. L. J. 264 and Ashamoyee Basu v. Baranagore Jute Factory Co. Ltd., 70 C. L J 34. He has contended that the F. B. decision of Khamankari v. Harsha Mukhi, 47 C. W. N. 582: (A. I. R. (30) 1943 Cal. 345 F. B.) had not been correctly decided in so far as it overruled the decision reported in Ashamoyee Basu v Baranagore Jute Factory Co. Ltd , 70 C. L. J. 34. I am afraid I am not in agreement with the learned counsel for the applts. The learned Judges who decided the case of Khamankari, (47 C. W. N. 582: A. I. R (30) 1943 Cal. 845 F B.) (Supra) had correctly held that Section 37 of Act XI [11] of 1859 was intended to protect the interest of the auction purchaser & not the interest of an encumbrancer or a tenure holder. I respectfully agree with the following observation made during the course of their judgment:
"It is no doubt true that when we speak of a tenure, we usually mean the true in its integrity: but where a tenure ex ends over more than one state, that part of it which is under one of the estates may without undue straining of language, be called an under tenure in that estate, if the context so requires. To insist that an under-tenure to be voidable under Section 37, must be wholly & exclusively within the defaulting estate would be parity of reasoning require that an encumbrance, if it is not to survive the revenue sale, must be wholly & exclusively upon the estate as that a mortgage extending over more than one estate would remain intact, even as to the portion within the estate. We cannot hold that such was the intention of the Legislature."
11. In my view, the F. B. of the Calcutta H. C. has correctly declared that the case of Ashamoyee Basu v. Baranagore Jute Factory Co. Ltd., 70 C. L. J. 34 had not been correctly decided. In that view of the matter, the principle of law as enunciated in the case of Mahbub Ali v. Radha Peary Kuer, S. A. No. 829 of 1940 must also be overruled. Thus, the pltfs. are entitled to claim annulment of that Mokarrari or mtge. interest which is confined within the newly carved out tauzi No. 4060 & it is not necessary for them to implead in the present suit the proprietors or tenure-holders of the remaining nine tauzis which were carved out by the Colleotorate partition out of the original tauzi No. 4060.
12. But there is a fatal defect in the frame of the present suit. As was held in the case of Khamankari, (47 C. w. N. 582: A. I. R. (30) 1943 Cal. 345 F. B.) (Supra), it was incumbent upon the pltfs to seek annulment of the entire Mokarrari interest within the newly carved out tauzi No. 4060. They have on the contrary, claimed annulment in respect of the Mokarrari and mtge. interest extending over eight annas share of tauzi No. 4060 only. From para. 10 of the plaint it is clear that the tenure-holders interested in the remaining eight annas mokarrari interest of the newly formed tauzi No. 4060 have not even been impleaded as party- defts. to the action Prom the trend of the statements in the plaint it appears that in the present action the pltfs. were concerned with seeking sir possession over the eight annas share of tauzi NO. 4060 only. The annulment claimed in this action, therefore did not relate to the entire tenure within this tauzi & the suit on that ground was liable to fail as was contended by the learned counsel for the applts. At this stage it is necessary to mention that after the creation of the original mokarrari the mokarraridars created a darmokarrari in respect of the eight annas share of the mokarrari interest in favour of the proprietors of the original tauzi No. 4060 After this, the original mokarraridars were in sir possession of the eight annas share of the tauzi as mokarraridars & were entitled to get rent from the dar-mokarraridars in respect of the remaining share, the latter, being in sir possession of the darmokarrari interest extending over the eight annas share of the tauzi. The pltfs. case as made out in the plaint is that the darmokarraridars did not resist the claim of the pltfs. to sir possession over the eight annas interest of the newly formed tauzi No. 4060 but, it were the deffs. 1 to 7 alone who interfered with their possession.
13. The Advocate General who appeared for the pltfs.-resp. contended that it was unnecessary for his clients to have brought an action in respect of the sixteen annas mokarrari share of the newly formed tauzi No. 4060, as they were not resisted in their sir possession in respect of the eight annas share, but I do not thinkthat his contention is sound. The khas possession of the pltfs. with respect to that eight annas share of the tauzi which was in direct possession of the darmokarrartdarg might not have been resisted, but that does not entitle the pltfs not to claim annulment of the entire mokarrari interest within the newly formed tauzi No. 4060. The interest of the Mokarraridars was quite distinct from that of the darmokarraridars The mokarraridars of the remaining eight annas share may not be in sir possession of that eight anna3 share, but they were cesrtainly entitled to claim rent from the darmokarraridars. Under the provisions of Section 37 of the Act XI [11] of 1859 the pltfs. could claim annulment of the entire interest of the tenure holder in the newly formed tauzi No. 4060 & not only a portion of that interest.
14. The Advocate-General further contended that it was unnecessary for the pltfs.-auction purchasers to have filed any suit for annulling the tenure; they were justified in treating the interest of the tenure holders as void. But I am afraid I am not inclined to accept this submission of the learned counsel for the pltfs. resps. In the case of Turner Morrison & Co. Ltd. v. Monmohan Chaudhury, 58 I. A. 440: (A. I. R. (18) 1931 P. C. 314) their Lordships of the Judicial Committee have clearly laid down that Section 37 of Act XI [11] of 1859 makes it incumbent upon the auction purchaser to avoid & annul "under tenures'' which term includes also "Tenures". Thus; if the present pltfs. thought it necessary to bring an action for avoiding & annulling the mokarrari interest, it was incumbent upon them to have sought avoidance & annulment of the entire mokarrari interest within the newly formed tauzi No. 4060 & impleaded as defts the tenure-holders interested in the remaining eight annas share of the tauzi also. Having not done so, in my opinion, their suit is bound to fail.
15. The result is that the appeal succeeds & the suit of the pltfs. is hereby dismissed. The applts. are entitled to their costs of all the Cts. against the pltfs.-resps.
Ramaswami, J.
16. In my opinion, the decision of the learned single Judge in S. A. No. 829 of 1940 must be overruled since the case of Sm. Ashemoyee Basu v. Baranagore Jutn Factory Co. Ltd., 70 C. L. J 34 upon which it is based, is no longer good law in view of the subsequent F. B. case, Khamankan Dasi v. Harsha Mukhi Dasi, 47 C. W. N. 582 : (A. I. R. (30) 1943 Cal. 845 F. B.).
17. In Ashamoyee Basu v. Baranagore Jute Factory Co. Ltd., 70 C. L. J 34 there were five tauzis which jointly held the lands comprised therein & each tauzi had an undivided fractional share in all the lands. A tenure was held under all these five tauzis, & one of the tauzis, viz., tauzi No. 166 having been sold for arrears of revenue, the purchaser sought to annul the under tenure so far as it related to that estate & recover possession of a corresponding share of the land. The Ct. of appeal dismissed the pltfs' suit on the ground that the proprietor of the other five tauzis were in the position of joint landlords with the pltfs-. & Section 37 would not allow annulment of a portion of an under-tenure. This view was affirmed in appeal by a Bench of the H. C. who relying upon two earlier decisions held that taking the words of Section 37 of Act XI [11] of 1859, as they stood, the auction-purchaser was entitled to eject all under-tenants who held their lands entirely within his estate, but was not en ;itled to eject an under-tenant who held an under tenure partly within his estate & partly within other estates.
18. In Khemankari Dasi v. Harsha Mukhi Dasi, 47 C. w. N. 582 : (A. I. R. (30) 1943 Cal. 345 F. B.) the quesfiion at issue was as to whether the pltfs. could obtain a declaration that their Patni interest under tauzi No. 335 which was the estate sold, was not in any way affected by the Revenue sale & could not by annulled. The pltfs. alleged that as their patni was one indivisible tenure under three estates of which only one was sold it could not be annulled under Section 37 of the Revenue Sales Laws. The suit was contested by deft, 1, who urged that the Patni held by the pltfs. was separable & even if it did include the lands of the other two estates, there was nothing in law which stood in the way of the purchaser's annulling it, to the extent that it was under estate No. 335. The trial Judge decreed the suit & the decree was, affirmed by the Dist. J. in appeal. It was argued: in the H. C. that the Patni held by the pltfs. being one integral patni under three estates could not be annulled in part by deft. 1 who was the purchaser of one of the estates In support of the pltfs reliance was placed in Ashamoyee v. Baranagore Jute Factory Ltd., 70 C. L. J. 34 But the F. B. held that the decision was not correct; that it was unsound in principle & that it was not supported by the decisions upon which it purported to rely. The P. B , therefore, ovarruled that case holding that a purchaser of an entire estate sold for arrears of revenue due on account of same, can annul an under tenure created under the said estate as well as other estates so far as it lies within the estate sold. At p. 598 the report states:
"It is no doubt true that when we speak of a tenure, we usually mean the tenure in it integrity; but where a tenure extends over more than one estate that part of it which is under one of the estates may, without undue straining of the language be called an unrte'- tenure in that eatae, if the context so requires To insist that an under tenure to be voidable under Section 37, must be wholly & exclusively within the defaulting estate would by parity of reasoning require that an moumbranae. if it is not to survive the revenue sale, must be wholly & exclusively upon the estate, so that a mtge extending or more than one estate would remain intact, even as to the portion within the estate. We cannot hold that such was the intention of tho Legislature."
19. The interpretation of Section 37 adopted in the F. B. case is consistent with the principle enun-ciated by the Judicial Committee in Forbes v. Meer Mahammad, 20 W. R. 44 : (12 Beng. L. R. 210 P. C.).
"The statutory title which the law gives to an auction purchaser is that for the protection of the revenue & in order to ensure its due payment by him & to avoid the necessity of repeated sales of the property, he is remitted to all those rights which the original settlor at the date of the perpetual settlement had; & may in consequence of that, sweep away or get rid of all the intermediate tenures & ineumbrances created by proceeding Zamindars since that date."
If it was the intention of the Legislature that the estate might always remain adequate security for Govt. revenue, it is necessary that the purchaser should get the estate in a condition that he might 'foe able to pay the Govt. Eevenue assessed thereon & that no act done by the proprietor after the Settlement, by which the estate became determined, or rendered incapable of yielding the revenue, should be allowed to affect him. As stated by Sir James Colvile in the case referred to, the auction purchaser is entitled to a presumption Hounded upon the principle that every bigha of land is bound to pay & contribute to the public revenue unless it could be brought within certain -exceptions recognised in the Act itself.
20. I am, therefore, of the opinion that the decision of Agarwala J. in S. A. No. 829 of 1940 should be overruled. But the pltfs. are not entitled to a decree in the present case since they have not claimed annulment in respect of the entire mokarrari interest within the newly carved out tauzi No. 4060, Prom para. 10 of the plaint it is apparent that the tenure holders interested in the remaining eight annas Mokarrari share in tauzi No. 4060 have not been impleaded. The present case, therefore, falls within the ambit of the decision reported in Soohram Barma v. Doorga Charan, 5 c. L. J. 264, which was distinguished & not overruled in the F. B. case. In Soohram Barma v. Doorga Gharan Das, 5 c. L. J. 264, the pltf. was the holder of a taluka potta under the auction-purchaser of an estate with regard to a portion of the lands only which were comprised in the estate. He sued to evict an under-tenure holder who had a tenure in respect of the lands in suit & certain other lands within the same tauzi, but not included in the pltf.'s potta. It was held that the pltf. could not annul the under-tenure in part in this manner. The tenure could be set aside as to all the lands belonging to it, & this could be done either by the purchaser of the entire mahal or by some person to whom he had transferred, either the whole mahal or all those lands of the mahal which were included in the Taluka potta of the defts. Here the lands of an under-tenure were all within the tauzi that was sold, & the H. C held that the purchaser or any person claiming from him could not evict the defts. from a portion of the lands. The reason is that there will be hardship to the tenure holder who will be subjected to multiplicity of suits at the instance of different purchasers. Applying this principle to the present case it is manifest that the pltfs. were not entitled to the reliefs they have claimed.
21. For these reasons I agree that the suit should be dismissed & the appeal should be allowed with costs throughout.