Ashiruddin, Sk. vs Pitu Majhi

P.N. Mookerjee, J.—This Rule was obtained by the Petitioner against an order of the learned Commissioner, Presidency Division, rejecting his application for revision of an appellate order of the Collector of 24-Parganas by which his objection to the opposite party''s claim for restoration of the disputed land was dismissed and the said claim was allowed. The relevant facts lie within a short compass and they are as follows.

The opposite party, who is a Santhal or aboriginal, was the owner of the disputed land. In execution of a money decree, obtained against him, the present Petitioner purchased the said land at a court sale. Thereafter, the opposite party brought a suit for setting aside the said sale and the said suit was eventually disposed of on compromise, by which the Petitioner''s title under the court sale was accepted by the opposite party and the Petitioner agreed to convey five bighas out of the property, purchased by him, to the opposite party. Eventually, the present application was filed by the opposite party for restoration of possession of the disputed land under the West Bengal Estates Acquisition Act, Rule 4, proviso, read with the relevant provisions of the Bengal Tenancy Act.

The opposite party''s claim was allowed by the Tribal Officer. On appeal, this decision was set aside by the Collector and the opposite party''s application was rejected upon the view that the said application was barred under the proviso to Sub-rule (4) of the above Rule 4 of the West Bengal Estates Acquisition Act, corresponding to proviso A to Section 49(H) of the Bengal Tenancy Act.

On revision, the above appellate order was reversed by the learned Commissioner, according to whom the requisite possession for 12 years for application of the above bar cannot be found in this case in favour of the Petitioner and, accordingly, the opposite party was entitled to restoration of possession. In that view, he made an appropriate order to the above effect. Against this order the present Rule was obtained by the Petitioner.

It is clear, for the materials before us, that the sale in question was held sometime in the year 1951 and the opposite party''s application for restoration of possession was filed in the year 1961. It is true that the said application did not contain full particulars of the land of which restoration was sought and the said particulars were supplied by an amendment application filed in the year 1963. It is clear, however, that this second application or amendment application must, in the circumstances of this case, be treated as a continuation of the original application and, accordingly, the date of filing of the application for restoration must be taken to be the year 1961, which will be within ten years of the sale in question; or, in other words, the test of the requisite possession for 12 years of the Petitioner for the application of the bar in question will not be satisfied. The learned Commissioner was, therefore, right in refusing to apply the said bar to the opposite party''s prayer for restoration.

Before us, however, Mr. Halder has sought to support this Rule and to challenge the impugned order of the learned Commissioner on the ground that the restrictive provisions of the Bengal Tenancy Act, or of the West Bengal Estates Acquisition Act in the above respect, relating to aboriginals or Santhals, did not apply to court sales. That submission, obviously, cannot be accepted in view of Section 49K of the Bengal Tenancy Act and the terms of Clause (2) of the proviso to Rule 4 in the Estates Acquisition Act. It is clear from the said provisions that the land or any portion thereof of an aboriginal or Santhal cannot be sold even in a court sale except for recovery of arrears of rent in respect of that land. The instant case was one of court sale for recovery of money other than rent. In the circumstances, this sale will be a nullity: vide in this connection the case of Joggeshar Mahata v. Jhapal Santal (1923) C.W.N. 556.

Mr. Halder further argued that, in any event, the matter will be concluded against the opposite party by res judicata or estoppel, in view of the decree, passed in the Title suit, referred to above, under which decree, made on compromise, the above court sale appears to have been Confirmed and the opposite party got a conveyance from the Petitioner of only five bighas of the land, covered by the auction sale in question.

In our opinion, this argument too cannot be accepted. As the decree was, admittedly, on compromise, there is no question of res judicata, The principle of estoppel, also, will not be available against statutes, which confer this special right on the aboriginal opposite party. The compromise again was nothing more than a contract and the contract certainly cannot prevail against the statute when the statute contains no exception in that behalf. The statute here is mandatory or imperative as it is based on public policy and no waiver will be permissible. In this view we reject this last argument too of Mr. Halder in support of this Rule.

In the premises, this Rule will fail and it will be discharged.

There will be no order as to costs of this Rule.

A.K. Dutt, J.

I agree.