Mahammad Eslam v. Animesh Chandra Sen Poddar — 1938 DIGILAW 178 (CAL)

JUDGMENT S.K. Ghose, J. - The Plaintiffs are the Appellants in this appeal. Their case is that they owned a raiyati holding in a Government khas Mahal and it was sold for arrears of revenue on 23rd September, 1921, and purchased by Defendant No. 16. The Plaintiffs appealed to the Commissioner but were unsuccessful. Thereafter they brought a title suit, being No. 335 of 1923, to have the sale set aside. This suit ended in a decree in accordance with a petition of compromise filed on the 23rd September, 1924. According to the terms of compromise the revenue sale was set aside on the ground that the Collector had no jurisdiction to sell a raiyati holding under Act XI of 1859. It was further agreed that the purchase money deposited should be withdrawn by Defendant No. 16 after certain deductions and also that the Plaintiffs should pay Rs. 400 to Defendant No. 16 on account of costs et cetra. On 27th September, 1924, the amount of surplus sale proceeds being Rs. 845-3-8 pies was withdrawn by Defendant No. 16 from the Collector. On account of subsequent arrears of rent, certificate proceedings were started not against the Plaintiffs but against Defendant No. 16, in Certificate Case No. 387 of 1926-27. There was a sale, Defendant No. 1 being the purchaser on 21st March, 1927, the sale was confirmed and possession was delivered to Defendant No. 1 on 8th September, 1937. Thereafter the Plaintiffs brought the present suit, praying for a declaration of their title in accordance with the terms of the compromise decree aforesaid and for a declaration that the certificate sale did not pass title, and that Defendant No. 1 had no right to dispossess the Plaintiffs and finally for a direction that if the Plaintiffs should fail in the above prayers, they would get refund of the surplus sale proceeds from Defendant No. 16. The suit was contested by Defendants Nos. 1 and 16. The remaining Defendants derive their interest from Defendant No. 1. The defence of the Defendant No. 1 is that he is bond fide purchaser for value. The defence of the Defendant No. 16 is that under sec. The suit was contested by Defendants Nos. 1 and 16. The remaining Defendants derive their interest from Defendant No. 1. The defence of the Defendant No. 1 is that he is bond fide purchaser for value. The defence of the Defendant No. 16 is that under sec. 34 of the Revenue Sales Act (XI of 1859), the Plaintiffs not having applied to have the compromise decree executed within six months of the date thereof, they must have lost all benefits therefrom and the title reverted to Defendant No. 1G. The Courts below have agreed in accepting the defence. Hence this second appeal. 2. It is admitted that the Plaintiffs did not apply for execution of the compromise decree within six months from the date thereof and ordinarily the Plaintiffs would lose their rights under sec. 34 of the Revenue Sales Act (XI of 1859). But the contention of the Appellants in this Court is that sec. 34 has no application, because the sale was not set aside under sec. 33 of the Act as having been contrary to the provisions of that Act, but that the sale was set aside on the ground that the Collector had no jurisdiction, and was therefore a nullity. This argument is based upon one of the terms of the compromise, but it loses sight of the fact that the compromise was only between the Plaintiffs on the one hand and Defendant No. 16 on the other and there was no judicial decision to the effect that the sale was a nullity. This point distinguishes this case from the cases upon which the learned Advocate for the Appellant has relied, for instance, Sm. Balkish Bibi v. Faridul Alam 37 C.W.N. 445 (1933). The Courts below have pointed out that even on the merits it cannot be said that the sale was set aside under sec. 33 of Act XI of 1859. It was pointed out that the suit in substance was not a suit under Act XI of 1859, it having been stated in the plaint that processes required to be served under the Act were not served and this caused substantial injury to the Plaintiffs. The Plaintiffs also appealed to the Commissioner for having the sale set aside. It was pointed out that the suit in substance was not a suit under Act XI of 1859, it having been stated in the plaint that processes required to be served under the Act were not served and this caused substantial injury to the Plaintiffs. The Plaintiffs also appealed to the Commissioner for having the sale set aside. The Secretary of State was not made a party to the suit and, as I have mentioned already, there was no judicial determination of the question whether the sale was valid or not. In these circumstances it is difficult to see how the effect of sec. 34 can be avoided and since the Plaintiffs have lost their rights, it must be held that the right of Defendant No. 16 acquired by his purchase stood good. It appears that the Government also regarded Defendant No. 16 as tenant of the holding and realised rents from him for subsequent periods. 3. A question was raised in this Court as also in the Courts below that this being a raiyati holding, the tenancy could not have been sold for arrears of rent under Act XI of 1859. The learned Judge below held that that Act, read with Act VII of 1868 and Act VII (B.C.) of 1880, would go to show that a raiyati tenancy such as the one in the suit could properly be sold for arrears of revenue under the same procedure as under Act XI of 1859. This view seems to us to be correct. 4. The only other point taken is that in any case the Plaintiffs should get back the surplus sale proceeds from Defendant No. 16. The Courts below have held that the Plaintiffs are not entitled to this, because they lost their lights by the previous sale held under Act XI of 1859. This conclusion cannot be avoided. The result is that this appeal is dismissed with costs to be divided equally between the two sets of contesting Respondents. Patterson, J. I agree.