Patna High Court
Trilochan Panda vs Dinabandhu Panda on 16 July, 1917
Equivalent citations: 44IND. CAS.317, AIR 1917 PATNA 103
JUDGMENT Mullick, J.
1. The plaintiffs Nos. 1 to 8 are co-sharer landlords of a Graontiabi village with defendant No. 1, who is also the lambardar appointed by Government.
2. It appears that certain tenants surrendered the lands in suit to plaintiffs Nos. 1 to 8, and that these plaintiffs thereupon leased the lands to plaintiffs Nos. 9 to 12. When that was done defendant No. 1, the lambardar, applied under Sections 45 and 47 of the Central Provinces Tenancy Act to be put in possession as landlord of the disputed lands. The Revenue Officer allowed the prayer, and the present suit has been brought by the plaintiffs in the Civil Court for a declaration that they have a proprietary right in the lands and are entitled to recover them from defendant No. 1; and in the alternative there is a proposal for joint possession with the defendant No. 1 to the extent of the shares of plaintiffs Nos. 1 to 8.
3. The Munsif found that the Civil Court had no jurisdiction to entertain this suit by reason of Section 95 of the Central Provinces Tenancy Act.
4. The learned Subordinate Judge in appeal was of a contrary opinion and held that the suit was maintainable, and he has remanded it to the Munsif for further hearing.
5. Now Section 35 of the Central Provinces Tenancy Act makes provision for the surrender of a holding by a tenant.
6. Section 36 provides that in cases of surrender the next heir of the surrendering tenant will, upon application to the Revenue Officer, be entitled under certain circumstances to be put in possession. It is to be noticed that this section makes no provision for surrender by a tenant to a co-sharer landlord and recovery of possession by the remaining landlords.
7. Then Section 46 of the Act provides that when an occupancy tenant sells his holding or makes a gift of it or mortgages it or sublets it for a period exceeding one year, or otherwise transfers his rights in the holding or in any portion thereof, every such sale, gift, mortgage, sub lease, or transfer shall be voidable in the manner and to the extent provided by the section.
8. Section 47 provides that when a transfer is made by an occupancy tenant, contrary to the provisions of Section 46, the landlord from whom the tenant held the land may, on application to a Revenue Officer made within two years from the date on which the transfer was made, be placed in possession under certain circumstances.
9. On behalf of the appellant before us it is contended that he was competent as lambardar to make an application under Section 47, and that the order of the Revenue Officer being final, and no civil suit being allowed by the Act for the purpose of setting aside that order, Section 95 is a complete bar to the present suit.
10. In order to bring himself within the provisions of Section 46 it is necessary for the learned Vakil for the appellant to establish that the surrender in this case was a transfer within the meaning of Section 46. Now the transfer contemplated by that section must be either a sale or a gift or a mortgage or a sub-lease, and the words "otherwise transfer" must be limited to transactions of a similar nature. A surrender is yielding up by the tenant of his rights to a, person who is entitled to the immediate reversion or remainder; in no sense can it be called a transfer, much less a transfer within the meaning of Section 46. The Act, while it makes provision for the recovery of possession by the heir of a surrendering tenant, makes no provision for such recovery by a co-sharer landlord, and to read Section 43 as creating such a right would, in my opinion, lead to an absurd result. For if this section applies then the co-sharer who accepts a surrender can only be ejected if he joins in his own ejectment, inasmuch as the word "landlord" in the section means the whole body of joint owners.
11. But then it is contended that the lambardar, representing the whole body of landlords, is entitled to eject, upon his own authority, without the consent or leave of the co-sharer who has accepted the surrender.
12. There is no justification for this contention. So far as the prayer for ejectment is concerned, be it in a suit before a Civil Court or an application before a Revenue Officer, the entire body of landlords must be represented; and, if the lambardar seeks to prosecute such a claim, he can only do so as the agent for the entire body. In the case under consideration he must, therefore, represent the very co-sharer who accepted the surrender in the first instance, and the same absurdity results.
13. Moreover, the position of the lambardar has been the subject of judicial authority and it is only necessary to refer to the case of Nilmani Guntia v. Jogendra Guntia 6 Ind. Cas. 389 : 37 C. 694 : 12 C.L.J. 104 where their Lordships of the Calcutta High Court have ruled that Section 138 of the Central Provinces Land Revenue Act does not give the lambardar power to eject trespassers from lands or to eject tenants. Section 11 of the Act defines a lambardar as a person appointed in the manner prescribed by the Act to represent the proprietary body of a mahal in its relations with Government. The institution of a suit for ejectment against a purchaser is not one of the duties which the lambardar can be held to have to perform as the representative of the co-sharers. In my opinion, therefore, it is clear that the lambardar has no authority to represent the co sharers for the purpose of ejectment before the Revenue Officer.
14. The result is that upon the ground that the surrender by the plaintiffs Nos. 1 to 8 was not a transfer within the purview of Sections 46 and 47 of the Central Provinces Tenancy Act, I hold that Section 95 has no application. The order putting defendant No. 1 into possession was ultra vires, and the plaintiff is entitled to maintain the suit. The appeal is dismissed with costs.
Atkinson, J.
15. I concur.