Gursahai Singh and another vs Meghu Mahton and others

Mohamad Noor, J.—This is an application in re vision against an order of a Deputy Magistrate of Bihar passed under S-145, Criminal P.C. declaring the opposite party, who were first-party in the proceeding to be in possession of ten plots of lands situated in village Daulatpur, tola Barandi tauzi No. 11625.

This village, which was a revenue paying estate, formerly belonged to one Sheikh Afzal Hosain, who gave it in zarpeshgi lease (ijara) to Rai Saheb Lakshmi Chand Suchanti on 26th June 1932, making him liable for payment of Government revenue. In the lease there is an express term by the lessee that he would not make any change in the bakasht lands. The lesee however made default in payment of the Government revenue and the estate was sold on 6th June 1933, for arrears of March kist of that year and purchased by one Saiyed Abdul Latif, who in his turn sold it on 28th August 1933, to Gursahai Singh, one of the petitioners in this Court. Delivery of possession was given to Gursahai Singh on 11th September 1933, under S. 29, Revenue Sale Act. (Act 11 of 1859). The lessee gave up possession without any trouble and admittedly he is no longer in possession. Gursahai Singh is in direct possession of the village. A dispute however arose about the possession of the bakasht lands which included the lands in dispute. The first-party claimed them on the basis of a settlement said to have been made with them by the Rai Saheb. Gursahai Singh, on the other hand, claimed them by virtue of the sale and delivery of possession given to him by the Collector. As there was an apprehension of a breach of the peace, a proceeding under S. 145, Criminal P.C. was started and ten plots of lands have been declared to be in possession of the opposite party. The petitioners, who were second-party in the proceeding, moved the learned Sessions Judge for a reference to this Court, which was refused, and the petitioners have now come up to this Court in revision.

The case of the first-party is that the disputed lands were settled with them by the lessee, the Rai Saheb, on fixed produce rent and that they continued in possession thereof even after the delivery of possession. They claimed occupancy rights in the lands a right protected under S. 37, Revenue Sales Act, Gursahai Singh the Second-party, as the representative of the auction-purchaser alleged that the lessee himself was cultivating these lands. As the zarpeshgi lease, which was an encumbrance came to an end on account of the revenue sale and the delivery of possession given by the Collector, he got khas possession of these lands and had sown rabi crop in them. It was also urged on his behalf that even if the lessee settled these lands with the first-party it was in contravention of the prohibition in the lease and therefore the first-party did not acquire any occupancy right and they must be taken to have been ousted by the delivery of possession given by the Collector. The first-party reply to this by urging that even if the settlement with them was without authority they were not affected by the delivery of possession and the remedy of Gursahai Singh is a suit for ejectment in the civil Court. Each party claims to be in actual possession of the land in dispute at the time when the proceeding under S. 145 was started.

The learned Magistrate has devoted a considerable portion of his judgment in discussing the question whether the land was in fact settled with the first-party by the Rai Saheb and whether the first-party were occupancy raiyats of the land. He has held on evidence before him that the lands were settled with the first-party and they were in possession of them, and not the lessee. His finding however on the question of the status of the first party is not very clear. At first he says that this is a matter for a civil Court to decide, indicating that a criminal Court is not a proper forum for the decision of the civil right of the first-party. Later on however he has held that the first party did acquire occupancy right and were not liable to he ejected till the term of their settlement, an obviously wrong view, for if they have acquired an occupancy right ''they cannot he ejected at all and not till the term of the settlement. Further on, he has definitely held that the first-party being the settled raivats of the village had acquired a right of occupancy. In my opinion, his reasonings are unsound and it was not necessary for him to decide the question of the status of the first-party.

An inquiry under S. 145 should as far as possible be confined to the question of possession only.

Now, though the settlement appears to be in violation of the term of the; lease given to the Rai Saheb, I do think it is necessary for me to give any decision upon the status of the first party. I shall assume that the settlement of bakasht lands in contravention of the lease did not give the first party a right of occupancy in the land, but it does not follow from it that the settlement was not binding upon the lessee and was not good as long as his lease lasted. This leads me to consider the effect of the dakhaldehani on the lease of the Rai Saheb and also on the possession of the first-party over the lands in dispute. The contention of the petitioners before me has been that the Rai Saheb''s lease was an encumbrance which was wiped out ipso facto by the revenue sale and the delivery of possession given by the Collector and along with it the first party also lost their possession of the bakasht lands even if they were settled with them, by the Rai Saheb in contravention of the term of the lease. On the other hand, it is contended on behalf of the first party that the sale and the delivery of possession did not ipso facto avoid the lease of the Rai Saheb, much less the raiyati interest whatever that may be of the first party. The lease of the Rai Saheb and the raiyati interest created by him has to be formally avoided. It has not become void by the sate. Rai Saheb''s giving up possession has not affected the possession of the first-party. Reliance was placed upon Mir Waziruddin v. Lala Deoki Nandon, (1907) 6 CLJ 472, etc., (at p. 484) where Mookerjee, J., in the Calcutta High Court relying upon the two earlier decisions of that Court held that an encumbrance was not avoided ipso facto by the revenue sale. He said:

We may further add that there is no foundation for the contention that the delivery of symbolical possession is a delivery not only as against the proprietors but also as against the holders of encumbrances or under-tenures. This argument appears to be used on the fallacious assumption that the effect of a sale for arrears of revenue is ipso facto to avoid all incumbrances and under-tenures. It is sufficient to refer to the case of Titu Bibi v. Mohesh Chunder, (1883), 9 Cal 683 (FB), to show that an incumbrances or under-tenure is not ipso facto avoided by a sale of an estate for arrears of revenue, and is only liable to be avoided at the option of the purchaser at such sale, an option which may be exercised by the institution of a suit within the time allowed by law. To the same effect is the decision in Mafizuddin Vs. Korbad Ali Chowdhuri, , with regard to which case we do not express any opinion as to whether the reasoning and actual conclusion may not be open to criticism. It is sufficient for our present purposes to hold that incumbrances and under-tenures are not ipso facto avoided by the sale, but are voidable only at the option of the purchaser and the purchaser may give indication of his election to avoid by any suitable means, for example, by the institution of a suit under S. 37. It must not be assumed however that the purchaser can indicate his election to annul only by the institution of a suit; he may indicate it by actual ejectment by the Collector under S. 29; such ejectment however cannot be presumed merely because a writ has been issued by the Collector, and must be established by evidences like any other fact: Bejoy Gopal Mukerjee v. Krishna Mohishi Dobi, (1907) 34 Cal 329 = 34 IA 87 = 5 CLJ 334 (PC).

The judicial Committee of the Privy Council, however in Turner Morrison & Co., Ltd. v. Monmohan Choudhry, 1931 PC 314 = 135 IC 765 = 58 IA 440 (PC) seems to have been of opinion that incumbrances are wiped out by the revenue sale, but under-tenures have to be avoided. The language of S. 37 leads me to think that the effect of a revenue sale of an entire estate is to avoid all encumbrances ipso facto, but under tenures have to be avoided. However there seems to be a good deal of force in the observation of Mookerjee, J., that though a formal suit for avoiding encumbrances may not be necessary, there must be an actual ouster of the encumbrance by the order of the Collector as contemplated in S. 29, Revenue Sale Act. A mere formal delivery of possession will not perhaps entitle the auction-purchaser to go and forcibly oust an encumbrancer who is not willing to vacate. An order to turn him out must be passed by the Collector. I have however great doubts whether the Rai Saheb was an encumbrancer. A zarpeshgi lessee is certainly an encumbrancer within the meaning of the Bengal Tenancy Act; but as has been pointed by the Privy Council in the case I have just referred to, he is perhaps not so under the Revenue sale Act. Their Lordships observed as follows:

No doubt under the Bengal Tenancy Act an intermediate tenure would be an encumbrance: see Ss. 159 and 161 where encumbrance is defined. But in their Lordships'' opinion it is not so under S. 37, Revenue Sales Act of 1859. The section draws a clear distinction between encumbrances and under-tenures. Encumbrances are wiped out by the sale. In case of under-tenures the purchaser is only entitled to avoid and annul them. On doing so, that is, upon exercising his option to annul, he can eject all under-tenants. What is intended by the expression ''under-tenure'' and ''under-tenant'' is shown by the exception that follows. A third exception refers to talukdari and other similar tenures. These can be annulled by the purchaser unless they fall within the provision of the exception.

A zarpeshgi lease though in one sense a mortgage is a lease all the same and as such a tenure. It seems to me therefore that the right of Lakshmi Chand Suchanti was net of an encumbrancer only but also that of a tenure-holder as contemplated in S. 37, Revenue Sales Act. Lakshmi Chand Suchanti has himself given up his possession perhaps in order to avoid the payment of mesne profits. But if it was necessary for Gursahai Singh to take steps to annul his tenure he cannot reach the tenants inducted by him on the bakasht land settlement with whom was at any rate good as long as the tenure lasted. I do not wish however to pursue these matters further. I am not deciding the points and it is not necessary for me to do so. I have discussed them to show that they are not simple and should be left for determination by the civil Court. The case must be decided on possession pure and simple. Assuming that the delivery of possession given to Gursahai Singh affected the possession of the first-party, the petitioners cannot possibly succeed. The utmost effect of the dakhaldehani, which was formal, is that on the day of the dakhaldehani Gursahai Singh must be taken to be in possession of the lands in dispute. But there was a difference of more than two months between the date of the dakhaldehani and the initiation of the proceeding under S. 145, Criminal P.C.; and if in the meantime in spite of the dakhaldehani the first-party have regained possession and were in peaceful possession when the proceeding started their possession has to be maintained under S. 145 of the Code unless it can be shown that they obtained that possession within two months of the initiation of the proceeding by force or fraud of which there is no allegation in this case. The case of the petitioners was that after the dakhaldehani they had sown rabi in the fields in dispute. On the other hand, the first party claimed that they had sown the rabi, and not the second-party. It is clear that rabi was sown after the dakhaldehani. The learned Magistrate has found on evidence that it was not sown by Gursahai Singh. It must therefore be taken that it was sown by the first-party and this not having been done cither by force or fraud the first-party must be taken to be in peaceful possession of the land after the dakhaldehani, and that is enough for this case. It seems that the learned Sessions Judge has gone over the evidence himself, and has come to the same conclusion.

An objection was raised before mc that the petitioners were prejudiced on account of there being one proceeding when there ought to have been seven proceedings. No doubt, it would have been very regular if this would have been the case, as there were seven claimants to the lands in dispute. But this objection was not taken before the learned Magistrate, and I do not think the petitioners have in any way been prejudiced by the procedure adopted. The result is that the application is rejected.