Abdul Hamid vs Dhirendra Nath Roy Choudhury

Renupada Mukherjee, J.—This appeal raises a pure question of law namely, whether the auction purchase of the right title and interest of the tenants of an occupancy raiyati holding by a stranger will prevail as against the auction purchase of the same holding at a subsequent date by the landlords of the holding against the recorded tenants.

In order to appreciate how the above question of law has arisen in this appeal it is necessary to state only the following facts. The settlement Khatian marked Ext. 4 in the trial court will show that one Baburali Tarafdar was recorded as a settled raiyat in respect of four plots of lands which are in dispute in this suit under one Priya Nath Roy Choudhury at a rental of Rs. 4 per year. After the filial publication of the record-of-rights, there was a partition between Priya Nath Roy Choudhury and his co-sharers and by that partition the disputed holding fell to the share of the Respondents of this appeal who were the Plaintiffs in the trial court. A copy of the partition decree which was filed in the trial court would show that the Plaintiffs-Respondents were to get the rent of the disputed holding from 1340 B.S. onwards and rents for prior periods were payable to Priya Nath Roy Choudhury. Priya Nath obtained a rent decree against the heirs of Baburali and after the death of Priya Nath his son Ashutosh Roy Choudhury auction purchased the right, title and interest of the heirs of Baburali on December 20.1938. It is not disputed that thereafter Ashutosh took delivery of possession of the disputed lands and settled them under raiyati right with Abdul Hamid, the sole Defendant of the trial court and the Appellant in this appeal. It appears that after Ashutosh had auction purchased the interest of Baburali''s heirs, the Respondents of this appeal brought a rent suit against the heirs of Baburali and obtained a decree and in execution of that decree they auction purchased the suit lands in August, 1942 and the sale was confirmed in September, 1942. The Respondents also took delivery of possession of the disputed lands in February, 1943. It is their case that they have been dispossessed from the disputed lands by the Appellant who is the lessee of Ashutosh Roy Choudhury.

The present suit for declaration of title and for recovery of khas possession of the disputed lands was instituted by the Plaintiffs-Respondents on September 1, 1948. The basis of their title was of course their auction purchase. The Defendant resisted the claim of the Plaintiffs contending that the prior auction purchase by Asutosh Roy Choudhury, the lessor of the Defendant, should prevail over the auction purchase of the Plaintiffs. The objection of the Defendant was overruled not only by the trial court but also in appeal by the lower appellate court and so he has come up in Second Appeal.

Mr. Bakshi appearing on behalf of the Appellant contended that as the heirs of Baburali were only two, namely, Rajan Bibi, his widow and Maharani, his daughter and as Ashutosh Roy Choudhury purchased right, title and interest of both these heirs of Baburali, the landlords did not purchase anything by their subsequent auction purchase. Mr. Mukherjee appearing on behalf of the Respondents contended, on the other hand, that the sale held at the instance of Ashutosh had the effect of a money sale and the holding did not pass and so the tenancy continued to be represented by the heirs of the recorded tenant Baburali up to the time of the auction sale at which the Respondents purchased the holding. After carefully considering this argument of Mr. Mukherjee, I am not prepared to give effect to it for the following reasons. The heirs of Baburali were only his widow and daughter, both of whom were made parties in the execution case in which Ashutosh purchased their right, title and interest. As the entire interest of the tenants passed, the question of purchasing the holding becomes immaterial and though the sale held at the instance of Ashutosh was in effect a money sale and not a rent sale within the meaning of Chapter 14 of the Bengal Tenancy Act, it was a perfectly valid sale against the whole world. The heirs of Baburali-lost all their interest in the holding after the auction purchase of their interest by Ashutosh. In these circumstances the present Plaintiffs "did not purchase anything at the rent sale held at their instance.

Mr. Mukherjee contended on behalf of the Plaintiffs-Respondents that according to the finding of the courts below no notice was served upon his clients in the execution ease in which Asutosh purchased the interest of the heirs of Baburali and so the holding continued to be represented in the sherista of his clients by the previous tenants. In my opinion, the above finding of the courts below that no notice of transfer was served upon the present Respondents is vitiated by an error of law inasmuch as there should be a statutory presumption that such a notice was served before the confirmation of the sale held at the instance of Ashutosh. [Vide the case of Menajuddin v. Heronuddin Mallick (1946) 51 C.W.N. 914.] Mr. Mukherjee drew my attention to a later case [Safedali Fakir v. Radharani Deb Sarkar (1951) 56 C.W.N. 441] and submitted that an opportunity should be given to his clients for the purpose of showing that Baburali''s heirs represented the tenancy at the time when the Respondents auction purchased the holding. In my opinion, the case cited by Mr. Mukherjee has got no application to the facts of the present case, inasmuch as there would be a legal presumption that notice was served upon the Respondents, before the prior auction sale in favour of Ashutosh was confirmed. In the face of that presumption which has not been rebutted, the Respondents cannot say that any other person excepting the auction purchaser of the entire interest of the previous tenants represented the tenancy at the material date, namely, the date of auction purchase by the Respondents. In view of these facts and circumstances, I am of opinion that the courts below have commuted an error in law in holding that the purchase of the Plaintiffs-Respondents should prevail over the prior purchase of Ashutosh. The Appellant claims the disputed lands as a lessee from Ashutosh. He is, therefore, entitled to resist the claim of the Plaintiffs. The only right which the Respondents have acquired by their auction purchase is the right to realise rent from Ashutosh in respect of the disputed holding.

On grounds set forth above, this appeal must be allowed and the suit of the Plaintiffs-Respondents must stand dismissed in the trial court. I, therefore, allow this appeal and dismiss the suit of the Plaintiffs. The Appellants will get their costs in all the courts from the Respondents.