Brojomohan Das Baishnab and Others vs Konoj Kumari Das

Thadani, C.J.—This is an appeal under the provisions of Section 147, Assam Land and Revenue Regulation, directed against an order passed by she P.R.A. to the D.C., Cachar, on 1-2-19-19, by which he ordered the name of Konoj Kumari Das, a daughter of Rash Behari Das, to be entered in the Mutation Register as a ''Shebait''.

It is contended by Mr. Chaudhuri on behalf of the appellants that the appellants, as far back as 22-7-44, succeeded in having their names entered in the Mutation Register as ''Shebaits'' of the identical property, and that the learned P.R.A. or the D.C. had no jurisdiction to Interfere in the order by which the names of the appellants were entered in the Mutation Register on 22-7-1944. He further contends that the application made by Konoj Kumari Das on 15-6-48 should not have been entertained by the learned D.C. relying upon Section 53A of the Regulation. This contention is manifestly erroneous. Section 53A does not refer to actions of the D.C. upon applications it refers of actions of the D.C. upon information received otherwise then upon an application. That, however, is not the substance of the matter. As the order of the P.R.A. was a very short one, a report was called for from the D.C. who has set out the facts clearly and referred to a decree passed in T.S. No. 6 of 1938 instituted by the step-mother of the respondent against the appellants for settling a scheme as to the ''debottar'' estate in dispute. That suit was decreed In favour of the respondent''s step mother on 5-12-38, by which the respondent''s step-mother was appointed ''shebait'' of the ''debottar'' property, and the 2 appellants who were defendants 2 and 4 in the suit for settling the scheme, were held to be ''pujaris''. An appeal against the decision in that suit was preferred by the 2 appellants, including the respondent, but it was dismissed on 30-3-39.

Shortly after the respondent''s step-mother obtained a decree In her favour, she made an application on 17-3-42 praying that she be released from the ''shebaitship'' of the ''debottar'' property. What happened upon this application of the respondent''s step-mother is not clear from the record, but what is not disputed is the fact that shortly after making this application, the respondent''s step-mother went to Benares during her absence, on 18-5-44 the 2 appellants made an application which was registered as Revenue Pet. No. 125 of 1943-44, in which they stated that their names should be entered in the Mutation Register as ''shebaits''. That was clearly a misleading statement. The 2 appellants were parties to the decree obtained by the respondent''s step-mother in 1938 they knew that they were not the ''shebaits'', but only ''pujaris''. In spite of that decree, which they suppressed, they described themselves as ''shebaits'', and on the strength of that assertion they obtained an ''exparte'' order in their favour, by which their names were entered in the Mutation Register.

The question now arises whether the learned D.C. was competent to vacate an order passed by his predecessor in 1944 by which the names of the 2 appellants were entered in the Mutation Register. Mr. Chose for the respondent contends that the earned D.C. had Jurisdiction to pass an order canceling the names of the 2 appellants from the Mutation Register and entering the name of the respondent in virtue of a note appended to Section 151, Assam Land and Revenue Regulation. His next contention is that assuming that the note cannot be regarded as empowering the D.C. to vary an order made by his predecessor, in summary proceedings u/s 53, Assam Land and Revenue Regulation, the, D.C. could under Rule 181 of the Assam Land Revenue Manual treat the application of the respondent as an application to set aside an ''ex-parte'' order made by his predecessor on 22-7-44. The difficulty, however, in applying Rule 181 of the Rules framed under the Regulation is that the application for setting aside the ex-parte'' decree was not made by the step-mother of the respondent, but by the respondent. It the terms Order 9, Civil P.C. can be invoked it is manliest that before the order could be set aside, the step-mother of the respondent had to show sufficient cause for her non-appearance. It is not disputed that the respondent did not make an application for setting aside the ''ex-parte'' decree. On the ground that her step-mother was prevented by sufficient cause from appearing assuming that an application by her would be competent. I cannot, therefore, see how the order of the D.C. vacating the order of his predecessor made on 22-7-44 can be regarded as an order made under Rule 181 read with Order 9, Civil P.C.

For the purposes of disposing of this appeal I will assume that the D.C. could not revise the order of his predecessor made on 22-7-1944 under the provisions of Section 151, Assam Land and Revenue Regulation. I will also assume that the learned D.C. on the facts of this case could not act under the provisions of Rule 181 of the Rules framed under the Regulation, read with Order 9, Civil P.C. But it seems to me that on the facts of this case, the learned D.C. was justified in invoking his inherent powers to set aside the order dated 22-7-1944 an order which, in my opinion, was obtained by the appellants by suppression of a very material fact, namely the decree in the suit of 193 Section An order obtained by the appellants in these circumstances which amount to a species of fraud, can be vacated by the Court which was misled into passing such an order under the provisions of Section 151, Civil P.C. In my opinion, the learned D.C. in the exercise of his powers u/s 151, Civil P.C. having regard to the facts which I have stated was Justified in vacating the order obtained by the appellants on 22-7-1944.

I would accordingly dismiss the appeal with no order as to costs, as ail the advocates in revenue appeal have agreed that no costs should be a warded whether they appear for appellants or the respondents.