Hankar Sonar vs Basudeo Singh

Foster, J.—The petitioner in this revision case is the auction-purchaser in a sale held in accordance with Section 158B of the Bengal Tenancy Act. After the sale the opposite party Basdeo Singh came into Court with a motion under Order XXI, Rule 90 to set aside the sale on the ground of fraud and material irregularity. The question that was most prominently before the Court was whether Basdeo Singh had a locus standi under Rule 90. The suit was for arrears of rent of an occupancy holding comprising khata No. 1080 standing in the name of Sawarath Singh. In the suit only Sawarath Singh was impleaded as defendant and the decree was passed against him. In his application under Rule 90 Basdeo Singh stated that his mother Basmati Kuer purchased 10 kathas out of 22 kathas of khata No. 1080 from one Hari Singh and that Basmati Kuer remained in possession all along until her death and after her death he, Basdeo Singh, came into possession. The applicant has since then been subjected to cross-examination and has admitted that Basmati Kuer was not his mother but his aunt. He has admitted that she is not dead but alive. He makes some assertion as to his adoption by the lady but on that point there is no finding of act. Now, it is obvious that if Basmati Kuer is the transferee, the fact that Basdeo Singh is her heir presumptive does not give him any interest in the property; for no man is heir to a living person. His position is quite different from that of a reversioner when the property is in the hands of a Hindu widow, for a reversioner has in law certain recognised rights to protect the reversion, whilst on the other hand, the presumptive heir stands outside the interest of the present holder. As heir, therefore of the transferee of portion of the holding he could not be, by reason of his presumptive heir-ship, a person whose interests are affected by the sale.

I come now to the other portion of Basdeo Singh's case in respect of his status The two Courts have held that Basdeo Singh has a locus standi because he is heir presumptive, but in the original Court it was also held that he had an additional justification for coming in under Rule 90 namely, the fact that he had been recognised as tenant by the landlord. The auction-purchaser who is appealing against the final order setting aside the sale has rested his case principally on the inconsistencies of the position of Basdeo Singh His learned Vakil has urged that if, as Basdeo Singh avers, Sawarath Singh has no interest in the holding and is not the tenant, then the decree obtained against Sawarath Singh cannot, for a moment, affect, the interest of Basdeo Singh So he states that Basdeo Singh is not such a person as has a right to come in under Rule 90. No doubt the position of Basdeo Singh is somewhat inconsistent throughout, but it seems to me that the case should not be decided merely on a criticism of his pleading. The case is before an Execution Court and it is the duty of that Court to recognise the decree and carry it out and not go behind it, whatever may be said by Basdeo Singh as to mis-joinder or non-joinder of parties. The decree must be held to be good and also the sale unless Basdeo Singh is a person who can get it set aside. Now, the learned Munsif held as a finding of fact that Basdeo Singh has been recognised as purchaser and as tenant in respect of his portion of khata No. 1080. It has been held that he has been permitted by the landlord to pay rent for this portion along with the rent of the khatas held by him in the village. This appears to me to amount to a finding that Basdeo Singh has an occupancy right in a holding subject to rent, portion of which is the 10 kathas within khata No. 1080. If so, then that portion, being the subject-matter of an occupancy right, is a protected interest within the sense of Section 160 of the Bengal Tenancy Act.

Now reverting to Sections 159 and 158B we see that a protected interest is not affected by a sale held under the Bengal Tenancy Act for arrears of rent. The purchaser now petitioning this Court will take possession subject to the occupancy right existing in Basdeo Singh, if such right exists; but once Basdeo Singh asserts that he has a protected interest he is obviously admitting that he is not a person whose interests are affected by the sale. I hold, therefore, that Basdeo Singh had no right to move the Court under Order XXI, Rule 90 of the C.P.C. The Rule is made absolute. The order setting aside the sale is rescinded and the sale restored. The petitioner shall have his costs in all Courts. Let the costs be assessed as in second appeal.