Patna High Court
Rajibnath Mukherjee vs Chota Nagpur Banking Association Ltd. on 3 March, 1948
Equivalent citations: AIR1951PAT515, AIR 1951 PATNA 515
JUDGMENT Ray, J.
1. This is a pltf's. appeal in a suit for a declaration of his raiyati right & for recovery of possession in respect of lands appertaining to khatas Nos. 50 & 210 in village khirgaon, police-station Hazaribagh, dist. Hazaribagh, & for confirmation of possession or, in the alternative, for recovery or possession of the lands appertaining to khata No. 51 of the same village.
2. The facts, out of which cause of action for the suit arose, are that the disputed lands appertaining to khatas 50 & 51 were recorded as raiyati in the names of Narendra Nath Mukherjee, Lokendra Nath Mukberjee, Adhendra Nath Mukherjee, Dijendra Nath Mukherjee Harendranath Mukherjee & Parendra Nath Mukherjee, all sons of late Rai Bahadur Jadunath Mukherjee, & that all the survey plots except No. 860 of khata No. 210 were all along their raiyati lands. Late Jadunath Mukherjee had acquired these lands from khas mahal by settlement. The aforesaid recorded tenants mortgaged all the raiyati lands in the aforesaid three khatas of the village along with other properties with the deft. Chotanagpur Banking Assocn. Ltd., in the year 1914. As the mtge. debts could not be liquidated, the deft. Bank enforced the mtge. in Suit No. 48 of 1925. The mortgaged properties were sold to the deft.-Bank in execution of the mtge. decree. They got delivery of possession on 1-8-1936. The deft. apprehending futility of the auction sale which was held in contravention of the provisions of Section 41, Chota Nagpur Tenancy Act, persuaded the mtgor-judgment debtors & their heirs to surrender the lands appertaining to khata No. 50 to the khas mahal (landlord) giving them to understand that the deft. would give them receipt of acquittance of all the debts outstanding against them. The petn. for surrender filed under the persuasion, however, was rejected by the khas mahal officer. Later, on 5-9 38 another petn. of surrender was filed by the aforesaid mtgorg. & their representatives excepting Parendra Nath Mukherjee, the pltf.'s father. The latter filed an objection withdrawing from the petn. of surrender already filed. The objection, however, was overruled, in disregard of the fact that the pltf.'s father had by partition become owner of the entire lands in suit. Acting upon the petn. of surrender & considering that the original tenancy had come to an end, the lands were settled with the defts. & their names were mutated instead of the recorded tenants. The deft. thereupon dispossessed the pltf. from lands appertaining to khata No. 50 & raiyati portion of khata No. 210 & claimed title in himself in lands of khata No. 51 though the latter had never been sold at the execution sale. The deft. resisted the suit on the following grounds: that the lands of original khatas Nos. 50, 51 & 210 were sold on 8-2-36 in execution case No. 96 of 1934 of the Ct. of the Addl. Subordinate Judge at Hazaribagh in the aforesaid mtge. suit; that the entire mtge. land in village khirgaon formed a compact block lying within the boundaries: north--Kaeheha public road, south--bungalow of BabuMonindra Nath Mukherjee, east--municipal Road, west-lands of Chhakori Mistry, Mohan Naya & Jitu Mali; that the lands of khata No. 51 including the big tank lie within the aforesaid boundary & form the central portion of the entire land sold; that the defts. got possession through Ct. of all the lands, house & tank included in original khatas Nos. 50, 51 & 210; that the plts. as alleged, is not in possession of khata No. 51 & that the pltf. is debarred from maintaining a suit challenging the validity of the sale in favour of the deft. Bank as neither he nor his predecessor-in-interest raised the objection in execution of the decree under Section 47, C. P. C.
3. The learned trial Judge recorded the following findings: (1) that the lands in suit were not the raiyati lands of either Rai Bahadur Jadunath Mukherjee or his heirs, but that Eai Bahadur Jadunath Mukherjee & his heirs including the pltf. had all along permanent leasehold interest in them which were heritable & transferable & that in this view the sale in execution of the decree was binding against pltf. (2) that the mutation order of the Khas Mahal Officer in favour of the deft.-Bank & settlement of 8 plots of khata No. 50 with them are valid; (3) that the pltf.'s suit was noli barred by the provisions of s. 47, C. P. C.; & (4) that the sale in favour of the deft. included the lands appertaining to khata No. 51.
4. All the above findings have been attacked by Mr. G. C. Mukherji appearing for the applt. in this Ct. His contention, in this behalf, are in the main (1) that the lands appertaining to khata No. 51 of the cadastral survey have not been sold; (2) that the lands sold are raiyati holdings & their sale, in execution, in contravention of the statutory prohibition contained in the Chota Nagpur Tenancy Act is void & passed no title to the deft. Bank; & (s) that the suit is not barred by the provisions of Section 47, C. P. C.
5. In support of his first contention, Mr. Mukherji has taken us through the description of the property sold as set out in Ex. F (certificate of sale in execution case No. 96 of 1934, dated 4-4-36) & EX. E (order sheet in the said execution case dated 22-12-34 to 12-9-36). The following is the description of the properties of judgment-debtors, 3 & 16 to 18. It is admitted by Mr. Mukherjee that the pltfs. represent judgment-debtor No. 3. I quote the description hereinbelow :
"I (A). One pucca tiled bungalow with orchard at Khirgaon, pargana Champa thana & dist. Hazaribagh, thana No. 145, the boundaries of which are as follows : East Puhlic Road. West --Jot land of the tenants Chhakouri & Mistri and others. North--Tank & the land appertaining thereto, i.e. lot No. 1 (B). South-House of Babu Mohindra Nath Mukherji, Khata No. 50, plot Nos. 856, 855, 854, 857, 858, 859, 834, 835, 830, 837, 838, 839, 849, 850, 951, 852, 853, 847, 848 & khata No. 210, plot Nos. 831, 860 area 6.19 acres at an annual rental of Rs. 5-8-0 sold at auction for Rs. 3,100.
1(B). A tank with orchard & the land appertaining to it at Khirgaon, thana & dist. Hazanbagh, thana No. 145, the boundaries of which are as follows : Bast Public road, West--paddy land of the tenants. North-unmettled public road. South land appertaining to the aforesaid bungalow, i. e. lot No. 1 (A), permanent right 8.93 aeres Govt. compound. Khata No, 50, plots Nos. 840, 841/1983 (?), 842, 843, 844, 845, 846, 825 (?), 836, 948/1920, 839/1981, 824/2061, 824/2062, 819, 820, 824, 832/1964, khata No. 10, plot Nos. 828, 829/1999, 830/1990, 830/1988, 832/1987, 833/1986, 835/1985 sold at auction for Rs. 3,000."
It appears from the aforesaid description that khata Nos. 50 & 210 have been mentioned therein but not khata No. 51 nor any of the survey plots appertaining to it, & this omission is in fact the bone of Mr. Mukherji's contention. In lot 1 (A) of the aforesaid description the total area of the survey plots mentioned there is given as 6.19 & that of lot No. 1 (B) is 8.93, the total being 15.12. In the khatian, area of khata No. 50 is 11.94 & that of khata No. 210 is 3.15 (?), the total being 15.12. It is evident that there is complete omission of khata No. 51 & its plots from the document. Beside the survey khata & plot numbers, each of the two lots 1 (A) & 1 (B) has also been described by reference-to the nature & boundary of the lands. Exhibit E does not go further than Ex. F in favour of applts. It is contended by Mr. B. G. De on behalf of the resp. that the boundaries of the lots include the lands appertaining to khata No. 51 & omission of the khata number or the plots is a mere clerical error and would not affect his title to the lands sold. He also invited our attention to Exs. C and D which are, respectively, application for execution and the sale proclamation in execution case No. 96 of 1934 in which the lands were sold to the deft. Bank. Execution petn. gives the following description of the -properties to be sold. It reads :
"1. One bungalow with a brick-built out-house with balcony & land appertaining the bungalow & the tank & the orchard aforesaid at Khirgaon, pargana Champa, thana & dist. Hazaribagh a half share of which, i. e. eight annas share has been awarded to judgment (?) No. 3 by partition, the boundaries of which are as follows :
East. -- Public road.
West. -- Paddy land of Ohhakouri Mistri, Mohannasa & Jinu Mali. North. -- E. B. Public road.
South. -- Bungalow of Babu Monindra Nath Mukherji, thana No. 145, Municipality holding No. 1, Ward No. 5, present Ward No. 9 Govt. Compound." Then follows khata numbers & plot numbers. The lands thus described are divided into lots 1 (A) & 1 (B). 1 (A) is described as "One brick-built tiled bungalow with orchard at Khirgaon, pargana Champa; thana & dist. Hazaribagh, Khata (probably a mistake for thana) No. 145, the boundaries of which are as follows : East -- Public road.
West. -- Jot land of the tenants Mistri and others.
North -- Tank & the land appertaining thereto, i. e., lot No. 1 (B)."
South -- House of Babu Mohindra Nath Mukherji.
Then follows the khata numbers & plot numbers. Lot No. 1 (B) similarly is specified as :
"Tank & orchard & the land appertaining thereto at Khirgaon, thana & dist. Hazaribagh, thaua No. 145, the boundaries of which are as follows :
East--Public road.
West--Paddy land of the tenants.
North --High public road.
South--Land appertaining to the bungalow, i. e, lot No. 1 (A)"."
It may be mentioned here that while describing the nature of the judgment debtors' right in the lands aforesaid, it is stated to be "one of perpetual building lease at an annual rental of Es. 34-9-0". Exactly the same manner of description has been followed in Ex. D, the sale proclamation. Coming to the certificate of sale, the comprehensive description of the entire block of land, as mentioned in Exs. C & D, has been omitted in it, but its two sub-divisions by reference to lots 1 (A) & 1 (B) have simply been mentioned. In interpreting the sole certificate, for coming to the conclusion as to identity of properties sold, the sale certificate must be read along with the execution petn. & the sale proclamation. It is admitted that the lands appertaining to survey khata No. 51 are surrounded on all sides by the lands appertaining to khata Nos. 50 and 210 of the same survey. Mr. De pointed out to us, on reference to the survey map, that all the lands appertaining to khatas Nos. 50, 51 & 210 are included within the comprehensive description by boundaries set out in the execution petn as in the sale proclamation. The entire block of land included within this boundary is divided into two sub- blocks described as lots 1 (A) & 1 (B). The division being roughly by a line drawn from east to west. Lot l (A) described as bungalow & lands appertaining thereto constitute the southern portion, while the lands described by reference to tank & orchard & the lands appertaining thereto constitute the northern block. Placing the two blocks side by side & locating the lands with reference to the boundaries, as mentioned in the sale certificate, it is abundantly clear that the two together constitute the block within the general & comprehensive boundary surrounding the bungalow, the tank & all the lands around it appertaining to survey khata Nos. 50, 51 & 210. There is a very good reason for omission of any reference to khata No. 51, that is, that after the survey, the tenants, namely, the judgment-debtors of the mtge. suit approached the khas mahal authorities, & complained against erroneous record of the survey in which all their lands had been shown as kaimi raiyati lands & thus subjected to enhancement of rent. In this complaint, they contended before the khas mahal authorities that theirs was permanent building leasehold interest which was not only heritable & transferable but also carried a permanent rent (not liable to enhancement on any ground whatsoever). The khas mahal authorities acceded to this complaint of the tenants judgment debtors, & excepting 8 plots in khata No. 50 included all the rest in a new khata bearing No. 229 & restored the permanent rent that had been fixed at the time of original settlement. This was done in accordance with the register maintained by the khas mahal of their tenanted lands. As a result, the survey entries were completely wiped out. There remained some trace of khata No. 50, but I find on close scrutiny that all the plots of khata No. 51 were included in the building lease lands. This happened in the year 1932 at the latest. The execution proceedings were started in 1934, before which the tenants inter se had a partition of these lands to which there is a reference in the execution petn. a portion of which has already been quoted. It is, therefore, apparent that the decree-holder described the lands to be sold by the boundaries & other kinds of description, such as, building, tank & the lands appertaining thereto. Mr. De has shown to us that the lands appertaining to survey khata No. 51 are nothing but tank & orchard & pind of the tank drains leading water into or out of the tank, a road consisting of 05 & one or two tanr plots bearing a total area of .69. It appears that out of the total area of 2.63 of this khata 1.43 is the tank & the rest must be its pind & the lands just adjoining it. Description of lot No. 1(B) in the sale certificate, the execution petn. & the sale proclamation open with the words "A tank with orchard & the lands appertaining to it the boundaries of which are as follows". In the circumstances, it is quite clear that though there is no reference to the survey khata No. 51, the lands appertaining thereto have in fact been sold & are included within the description inserted in the relevant documents. I shall, therefore, hold that there is no substance in this contention.
6. Contentions 2 & 3 may conveniently be dealt with together. It appears the disputed lands were recorded in the survey as raiyati & fair rents were settled in respect of them under Section 85 (2) of the Chota Nagpur Tenancy Act, but shortly after the final publication of the survey record of rights the tenants concerned, namely the judgment-debtors approached the khas mahal authorities with a complaint that the lands were wrongly recorded as raiyati. As a result there was an Arrangement as between the khas mahal (landlord) & the tenants & excepting 8 survey plots appertaining to khata No, 50, all the rest were included under khewat (EX. X-3) bearing No. 229 as permanent leasehold lands. The order of the Deputy Collector was passed in case No. 352 of 1917/1918 on 20 3-1918. The effect of the order was that the plots shown in the aforesaid khewat had been by mistake recorded as raiyati & khata in the 1913 survey by the Settlement Dept. & that they were taken out from the khatas & separately shown in the khewat. Mr. Mukherji for the applts. wants to contend that this order of the khas Mahal Deputy Collector cannot override the record of rights. He also takes us to the oral evidence showing that in some of the plots paddy is grown. He has also shown to us that in the record of rights some lands have been shown as paddy lands. There seems to be no substance in this contention. He is bound by the arrangement arrived at between himself & the landlord on the basis of what both of them knew to be the character of the land. Record of rights is not conclusive evidence nor does it create any title. Suppose the tenants instituted a suit challenging the correctness of the entries & a settlement was arrived at between them & the khas mahal accepting the contention of the tenants that the lands were not raiyati, could it be open to the tenants to go back upon the settlement & urge that the record of rights should prevail? The answer to this question must be in the negative. The contention, therefore, that the landa are raiyati loses its force in view of the Khas Mahal Deputy Collector's order & preparation of the new khewat. There remain the 8 plots which have still been left in the raiyati khata No. 50. With regard to these Mr. De contends that major portion of those plots is covered by Ex. H which is a lease dated 15-5-1895 granted by the D. C., Hazaribagh, to Rai Bahadur Jadunath Mukherjee, the predecessor in-interest of the pltf. This document shows that the lands settled under it were given on permanent lease. The document opens with the words:
"Whereas the Comr. of Chotanagpur in his letter No. 403 I,/R dated 20-2-1893, sanctioned the appln. of the lessee for the settlement in perpetuity in order to enable him to construct a tank of 10 plots of land as per details below. This patta is given to the lessee, his heirs, executors, assignees & other legal representatives subject to the "
It is not disputed that lands granted on this document cannot be ordinary raiyati kaimi lands inalienable under the Chota Nagpur Tenancy Act. To ascertain the identity of these lands, commission was issued to a civil Ct. Comr. who after proper measurement & relay on the spot came to the conclusion that 2.87--consisting of portion of 848/1980--.20, portion of 824/2061--1.23, portion of 819--.09, & portion of 824--1.35 aggregating 2.87,--appertained to the plots settled under H. That being so, it cannot be said that subsequent user of some of these lands for the purpose of growing paddy will at all detract from the permanent heritable & transferable character of the tenancy. Mr. Mukherji's contention, therefore, will not apply to the aforesaid 2.87 acres. Deducting this area from 4.61 the area of the 8 plots still outstanding in khata No. 50 of the survey, the remainder 1.74 will have to be assumed to be raiyati lands. The pltf. has only one-third share in this area, which comes to .58 of an acre, The contention of Mr. Mukherji, if it succeeds, will enable him to have declaration of title & recovery of possession in respect of this land.
7. Mr. De, however, contends that the contention that any raiyati area was not liable to be sold relates to execution, discharge or satisfaction of the decree & should have been raised by the pltf. a judgment-debtor, as he is, in the execution proceedings under Section 47, C. P. C. In this view, he urges that the suit is not maintainable. Mr. Mukherji in this connection relies upon an E. B. decision of this Ct. in the case of Uchit Lal Missir v. Raghunandan Tewari, 15 P. L. T. 661 : (A. I. R. (21) 1934 Pat. 666 F. B.) The appeal in that case was against an order passed by an executing Ct. in execution of a mtge. decree for sale. The objection attacking saleability of the mtged. property had been raised under Section 47, C. P. C. The executing Ct. held the objection to be non-maintainable on the authority of a previous decision of this Ct. in Amrit Lal v. Jagat Chandra, 7 P. L. T. 468 : (A. I. R. (13) 1926 Pat. 202). Two learned Judges of this Ct. (Macpherson & Dhavle JJ.) doubted the correctness of this latter decision, in view of the imperative prohibition against sale of such properties codified in Section 27, Santal Parganas Settlement Regulation. The F. B. held that Amrti Lal Seal's case, 7 P.L.T. 460 : (A.I.R. (13) 1926 Pat. 202) had. been wrongly decided. The main contention in that case was that a mtge. decree having been passed & the question of inalienability of the mtge. property not having been raised in the suit, it was beyond the competence of the executing Ct. to refuse to put the decree into execution. This contention was negatived, & it was held that notwithstanding the decree, it was still open to the judgment-debtor to raise the question under Section 47 at the execution stage. On this simple ground this case can be distinguished from the case in hand. This F. B. case at least decides that the question was one which could have been raised within the purview of Section 47, of the Code in the stage of execution. Mr. Mukherji's contention, on the contrary, is that as the decree for sale did not validly authorise the executing Ct. to sell the property, & as the sale offending, as it did, the imperative provision of the statute was a void one, it was quite optional for the judgment-debtor to raise the plea in course of execution or not. His submission is that the judgment-debtor could stand by the sale & delivery of possession & could come with a separate suit for a declaration that the sale was void & for recovery of possession. Before answering this contention, I should draw attention to the basis of the F.B. decision which is contained in the following observation from the judgment of Courtney-Terrell. C. J. at p. 675 of the report :
"I now turn to the nature of the entry in therecord of rights with which we are concerned in this case. It must be definitely understood that the record of rights in the Santal Parganas has a status very different from that under the Bengal Tenancy Act. Section 25 of the Regulation provides that after a period of six months from the date of the publication of the record of rights of any village such record shall be conclusive proof of the rights & customs therein recorded."
The argument is that that was a case in which it was not open to any of the parties to dispute the status of the tenant in respect of the lands in suit. Once the status is conclusively settled & definitely known, the law in Section 27 of the Regulation is a prohibition directed to the Ct. & that any Ct. passing an order in disregard of the statutory prohibition must be taken to have acted beyond jurisdiction. Such considerations, however, do not arise in the present case. Here I may refer to a decision in the case of Bindeswari Gharan v. Bageshwari Charan, 63 I. A. 53 at p. 59 : (A. I. R. (23) 193ft P.C. 46). There the question arose whether the question of validity of a grant prohibited by Section 12A, Encumbered Estates Act, was barred by res judicata. Agarwala J. (as he then was) with whom James J. concurred held as follows: "Reverting to the question of the operation of the doctrine of res judicata on the grant of 1909, the point for determination is whether the decision in the 1917 suit can render valid a transaction which Sub-Section (3) to Section 12A declares to be void .... Now the third sub-section of Section 12A, declares that an alienation or charge made without the previous sanction of the Comr. is void that is to say, it is void ab initio. The grant of 1909 was in my opinion still born, & the decision in the suit of 1917 could not impregnate it with life, I therefore hold that we are not bound to treat the grant of 1909 as valid merely by reason of the conclusion as to its validity arrived at by the learned Subordinate Judge in the 1917 suit." As against this their Lordships of the Judicial Committee observed as follows :
"Truly the third sub-section of Section 12A renders void . any transaction to which it is applicable, but the question whether it applies to a particular transaction entitled the Ct. to consider the construction of the section, & the determination of its applicability rests with the Ct. The decision of the Ct. in the suit of 1917 determined that the section had never applied to the transaction of 1909, & it is difficult to follow the reasoning of the learned Judge which allowed him, not only to express a strong contrary view as to the applicability of the section, which he was entitled to do, if he so chose, but to try anew the issue as to its applicability--in face of the express prohibition in Section 11 of the Code."
Mr. De strenuously contends that after this decision of the P. C. the decision in the E. B. case cannot be considered to be good law. I reserve my opinion in relation to this contention, & I do not think it is at all necessary to go so far as that in the instant case. It is clear that, unlike in the case decided by the F. B. the settlement entry recording the disputed lands as raiyati kaimi was not conclusive & whether they are raiyati & whether the section prohibits their alienation at auction sale or otherwise was applicable to the facts of the present case were open for consideration either by the Ct. passing the mtge. decree or, at least, by the Ct. executing the said decree. In view of the fact that the question was open for the executing Ct. to decide & for the parties to raise & they did not do so, it should be held that the party is debarred from agitating it again in a suit. I will recall that in the execution petn. the properties sought to be sold were describad as lands held under perpetual building leases. The decree-holder, therefore, raised the question of fact while soliciting the assitance of the executing Ct. to put the property to sale for satisfaction of the decree. It was open to the judgment-debtors to refute this question of fact & to urge, as the pltf. urges now, that the lands or any part thereof not being permanent leasehold land but only raiyati, were not liable to be sold in satisfaction of the decree. Under the circumstances it appears to me quite clear that Section 47 is a bar to the maintainability of the present suit. In support of this conclusion of mine, I would rely upon a much later decision of this Ct. in the case of Bhagwat Narain v. Mahadeo Prasad, 23 P. L. T. 56 : (A. I. R. (29) 1942 Pat. 244) in which a D. B. held :
"The question as to whether the disputed property could be alienated in spite of the provision of Section 12A, Chota Nagpur Encumbered Estates Act, was essentially a question to be decided between the judgment-debtor & the decree-holder in the execution proceedings, & the judgment-debtor cannot raise the question in a separate suit even though the suit is brought not against the decree-holder but against the auction-purchaser, even though it may be assumed that the auction-purchaser is not a representative of either the decree-holder or the judgment debtor. The suit is, therefore, not maintainable in view of Section 47, C. P. C." In the result, the appeal fails & is dismissed with costs.
Manohar Lall, J.
8. I agree. The correctness of the decision in the P. B. case of Uchit Lal Missir v. Raghunandan Tewari, 15 P.L.T. 661 : (A. I. R. (21) 1934 Pat. 666 F.B.) does not arise for consideration in the present case which can be decided in accordance with that decision. In my opinion the present suit is barred under Section 47, C. P. C. so far as lands other than khata 51 lands are concerned.