Radha Ballabh Pandey and Another vs Ram Ran Vijoy Prasad Singh and Another

Manohar Lall Ag. C.J.

This is an application on behalf of two persons who are aggrieved by the order of the learned Munsif dated 30th April 1945 by which he rejected their application to set aside the sale and to be restored to possession.

It appears that the two petitioners claimed to be entitled to a portion of the holding in suit, petitioner 1 by reason of a kebala of the year 1911 and petitioner 2 claiming to be the shikmidar under him. The landlord obtained a decree for rent against the vendor of petitioner 1, that is to say the original raiyat, and, in execution of the decree, it was alleged that the judgment-debtor had purchased the holding himself and obtained the delivery of possession. As a result of delivery of possession the case of the petitioners was that they had been dispossessed. Accordingly they filed an application under Order 21, Rule 100, Civil P.C., to be restored to possession. We are informed that an application was also filed under Order 21, Rule 90, Civil P.C. on the ground of irregularity and fraud in "conducting and publishing the sale. At the time of the hearing of the application, the petitioner also urged that the sale should be set aside u/s 173(3), Bihar Tenancy Act.

The learned Munsif held that on the facts and circumstances of this case he could not hold on the uncorroborated statement of the applicant alone that he was in possession of the disputed land at the date of the delivery of possession. He, therefore, thought that the dispossession in this case was not a dispossession in the course of delivery of possession and, therefore, the matter was beyond the scope of Order 21, Rule 100. The learned Munsif was then urged to consider the applicability of Section 173(s), Bihar Tenancy Act, and although he held that the application was maintainable, he took the view that the prayer to Set aside the sale must fail on the ground that the application was barred by the law of limitation inasmuch as it was filed more than thirty days after the date of the sale which took place on 15-5-1944. Hence the application in revision to this Court.

It is impossible to give any relief to the petitioners against the findings of the learned Munsif while rejecting the application under Order 21, Rule 100, Civil P.C. The question as to whether the application was ''or was not rightly rejected under Order 21, Rule 90, Civil P.C. is not before us.

It is, however, urged on behalf of the petitioners that the learned Munsif failed to exercise a jurisdiction vested in him by law when he erroneously took the view that the application if treated u/s 173(3), Bihar Tenancy Act, was barred by limitation. The learned Advocate is supported in his contention by two Division Bench decisions of this Court--Chandrama Rai v. Maharaja of Dumraon AIR 1916 Pat. 30 and Ananta Charan Padhan and Others Vs. Nimai Bahubalendra and Others, In both these cases the learned Judges of the Division Bench of this Court interfered in their revisional jurisdiction u/s 115, Civil P.C. In those cases it has also been held that an application u/s 173(3), Bihar Tenancy Act, will be governed by Article 181, Limitation Act as it is not an application under the CPC which would have attracted the operation of a shorter period of limitation of thirty days. In this view, the order of the Court below on point No. 3 must be set aside because he failed to exercise the jurisdiction vested in him by law.

The learned Advocate for the opposite party drew our attention to a number of cases in which it has been held that the High Court is not bound to interfere u/s 115, Civil P.C., where the Court merely has taken an erroneous view on a question of limitation and thus either exercised or refused to exercise jurisdiction to give a proper relief to the party concerned. But as I have already observed, there are two Division Bench cases of this Court where the Court has interfered u/s 115, Civil P.C., in a matter similar to the present case.

At one time we thought that the petitioners-were not the persons interested in the sale within the meaning of Section 173(3), Bihar Tenancy Act, but having regard to the reasoning in the case in Brahmdeo Singh v. Janki Lal AIR 1935 Pat. 210 we are of opinion that the correct view to take is that the petitioners who claimed to be the owners of a portion of the holding are interested in the sale as the words ''interested in the sale, appear to be much wider than the words ''affected by the sale.''

It should also be observed that the learned Munsif has not considered whether this was a fit case in which the sale should be set aside and a re-sale ordered. He has not also considered whether the petitioners are interested in the sale on account of the fact that they had a Valid claim to be considered within the category of the expression ''interested in the sale'' and it was argued on behalf of the opposite party that as the shikmidar or his settlor petitioner No. 1 has not been in possession ever since 1911 how can they be held to be interested in the sale. This question will be considered by the learned Munsif when the case goes back to him.

For these reasons, the order of the learned Munsif is set aside and he is directed to dispose of the application in accordance with law but only on point No. 3, namely whether the sale is fit to be set aside under the provisions of Section 173(3), Bihar Tenancy Act. Costs of this Court will abide the result and will be disposed of by the learned Munsif. Hearing, fee one gold mohur.

Das. J.

I agree.