Allahabad High Court
Tara Chand vs Imdad Husain And Ors. on 1 January, 1800
Equivalent citations: (1896)ILR 18ALL326
JUDGMENT John Edge, Kt., C.J. and Blennerhassett, J.
1. This was a suit for partition. The zamindar had mortgaged certain interests in his aamindari and his interest in a house by way of usufructuary mortgage. The usufructuary mortgagee granted a lease to the mortgagor, and the mortgagor became his tenant of the mortgaged premises. The mortgagor made default in payment of rent. The mortgagee brought a suit for arrears of rent and obtained a decree under Act No. XII of 1881. He applied to the Court of Revenue to execute that decree by sale of the mortgagor's interest in the house which was included in the mortgage. The mortgagor opposed the application for sale on the ground that Section 99 of Act No. IV of 1882 applied. As a matter of fact the mortgagor was quite right: the section did apply. The Court of Revenue, however, was of opinion that the Transfer of Property Act did not apply to Courts of Revenue, and declined to pay any attention to Section 99 of that Act. It is hardly necessary to say that Section 99 of the Transfer of Property Act is as binding on a Court of Revenue as it is on a Civil Court. It is a section of general application which has been enacted by the Legislature which can pass enactments binding on Courts of Revenue. The judgment-debtor appealed to the Board of Revenue. The Board of Revenue saw no reason for differing from the decision of the Lower Appellate Court, and dismissed the appeal. The result was that the Court which is given jurisdiction by the Legislature in such a case to execute decrees for arrears of rent under the Rent Act, came to an erroneous decision. That erroneous decision was affirmed by the Court of appeal provided by the Legislature in such cases; and the decision became final between the parties and binding. It is a good example of a result of a Court of Revenue having jurisdiction to decide a question of title or of right. However, the Court of Revenue and the Board had the exclusive jurisdiction in the matter, and the decision of the Court of Revenue is final. The property was sold in contravention of Section 99 of the Transfer of Property Act, and this suit is brought by the auction-purchaser to obtain possession of the interest which he purchased in the house.
2. The suit was brought in the Civil Court. The first Court rightly construed Section 99 of the Transfer of Property Act, and rightly held that it applied to a Court of Revenue, and the Munsif dismissed the suit. On appeal the District Judge, taking the same view which the Munsif did as to the applicability of Section 99 of the Transfer of Property Act, dismissed the appeal. The plaintiff has brought this second appeal.
3. The position is shortly this. As between, the judgment-debtor and the judgment-creditor in the rent suit, the decision of the Court of Revenue is final, namely, that notwithstanding Section 99 of the Transfer of Property Act, the judgment-debtor's interest could be lawfully brought to sale in execution of a decree for rent by the mortgagee. The plaintiff purchased in execution of that decree, and neither the judgment-debtor nor the judgment-creditor can dispute the title which he obtained by the purchase. The only question remaining is--can the other co-sharers in the house be allowed to dispute the title of the auction-purchaser, the plaintiff, under these circumstances? The other co-sharers had no interest in the share sold. As between the parties interested in that share and the auction-purchaser the question is concluded by the decisions of the Courts of Revenue. In our opinion the other co-sharers in the house cannot, in this suit for partition, be heard to say that the plaintiff has not got that title by the auction sale which neither the judgment-debtor nor the judgment-creditor could dispute.
4. We have been referred to Sathuvayyan v. Muthusami I.L.R. 12 Mad. 325; Durgayya v. Anantha I.L.R. 14 Mad 74 and Vigneswara v. Bapayyd I.L.R. 16 Mad. 436. The facts of those cases were not similar to the present.
54. We allow this appeal with costs in all Courts; and we remand this case under Section 562 of the Code of Civil Procedure to the first Court to be disposed of according to law.
55. The issue raised on the question of ism farzi has already been decided and is not open.