Ajab Lal Munder and Others vs Naresh Mohan Thakur and Others

Dawson-Miller, C.J.—This is an appeal under the Fathers Patent by the first party defendants in the suit from a decision of Allanson, J., dated 19th May 1997, affirming a decree of the District Judge of Bhgalpur which in turn upheld the decision of the Munsif of Badka.

The plaintiff, as trustee of the estate of the late Babu Pran Mohan Thakur, is proprietor of a four-annas share in Mouza Mirjapur Chandravan. The appellants are his tenants holding 50 bighas of land under him in the mauza. The suit was instituted to recover bhaoli rent and damages for the year 1327 Fasli and nagdi rent and interest for subsequent years the rent having been commuted from the year 1328 Fasli. In this appeal we are concerned only with the bhaoli rent for the year 1327 Fasli. The second party defendants are the plaintiffs'' cosharer landlords who by arrangement make separate collection from the tenants. They have not entered appearance and we are not concerned with them in this appeal.

The defence made by the appellants in their written statement is that paddy crop only is grown on the land and that for the year 1327 they applied to the Sub-Divisional Officer u/s 69, Ben. Ten. Act to make division of the crop and that under the orders of the revenue Court the Nazir got the crop reaped and threshed and the share of the landlords, who did not appear in the proceedings was deposited in the custody of Dhirnath Jha and Bogli Jha residents of Barauna and they, the appellants, are no longer liable. The plaintiffs amongst other points raised by them at the trial questioned the regularity of the proceedings u/s 69, Ben. Ten, Act contending that the notice required by Section 70(2) before making a division of the crop was not served upon them, that they were given no opportunity of being heard by the Collector before passing orders on receipt of the Nazir''s report under 8. 70(4) and that no final order was in fact passed by the Collector.

It was found as a fact by the District Judge in first appeal that notice was duly served upon the plaintiffs as required by Section 70(2) and that the plaintiffs'' share of the produce as found by the Nazir was made over to the custody of the two persons named; but he held upon the authority of Suraj Prasad Mahajan v. Karu Singh [1919] 4 Pat. L.J. 32 that the order passed by the Collector on receipt of the Nazir''s report was a bad order and could be ignored by a civil Court, as it had no finality. He further upheld the trial Court''s finding that the appraisement papers filed by the plaintiffs should be preferred to the Nazir''s report especially as the crops had not been kept under continuous custody, and allowed a sum of Rs. 279-9-9 together with Rs. 34-15-3 damages at 12� per cent, for the produce rent of 1327 Fasli passing a rent-decree for that amount. The decree was affirmed by Allanson, J., on second appeal to this Court.

In the case of Suraj Prasad Mahajan v. Karu Singh [1919] 4 Pat. L.J. 32 (sic) it was found that the amin deputed to make the division in that case acted without jurisdiction in selling the crop, but apart from this the Court held that the order by the Collector stating that the proceeding of the sale of the landlord''s share not having been accepted the balance after deducting the amin''s costs had been deposited in the treasury and the case disposed of was not a final order as it did not direct payment of the amount to any one, and as it lacked finality was not such an order as was contemplated by Section 70(5), Ben. Ten. Act. Therefore, it was hold that the order Being bad and not enforceable as a decree, the suit for rent was not barred. In the result the appeal was remanded to enable a decision to be come to as to the amount due to the landlords.

With great respect to the learned Judges who decided that case, I cannot take the same view as to the scope and purport of Sections 69 and 70, Ben. Ten. Act. In my opinion the fact that no final order has been made does not in itself entitle the landlord where proceedings have been taken u/s 69 to sue for rent ignoring the proceedings which have been taken. I consider that the intention of the Act was that where the circumstances mentioned in Section 69(1) Clause (a) or (b) arise, then, upon the application of either party interested, the Collector may take the matter into his own hands and make an appraisement or division of the crop through such officer as he thinks fit. u/s 70(2) before such appraisement or division is made notice must be served on each of the parties informing them of the time and place at which the appraisement or division will be made. If either party fails to attend, as in the present case, the officer appointed may proceed ex parte u/s 70(2). The officer, after making his appraisement or division, must submit his report of the proceedings to the Collector who under Sub-section (4). shall consider the report and after giving the parties an opportunity of being heard, and after making such enquiry, if any, as be may think necessary shall pass such orders as he thinks just. Then under Sub-section (5) subject to his power to refer questions in dispute to a civil Court for decision his orders shall be final and on application to a civil Court may be enforced as a decree.

I apprehend that whilst proceedings are pending under these sections it would be a complete answer to any suit brought by the landlord for rent to plead that the matter was the subject of adjudication by the Collector. It is urged, however, that the proceedings before the Collector have ended and no final order has been passed. If that is so, then it seems to me that the proper course is for the plaintiffs to apply to the Collector to pass a final order which would enable them to receive their share of the produce from the persons in whose custody it has been deposited. No such application has been made, and, in my opinion, until it is made, or until the plaintiffs can show that they have attempted and failed to get their share, they cannot invoke the assistance of this Court, and the Court has no power to ignore the whole proceedings and try the case afresh as a rent suit. There is no default on the part of the defendants. I consider, however, that the order passed by the Collector had the effect of affirming the action taken by the Nazir and deciding that the crop had been properly divided between the parties. It only remained for the plaintiffs to apply to the Collector for an order for delivery to them of their share from the persons with whom it had been deposited, even if they: were not entitled to do so without such order. There was nothing so far as I can see, to prevent them from taking this course. If on the other hand, they were dissatisfied with the Nazir''s report they should have applied to the Collector to be given an opportunity of being heard. This also they did not do. This suit is not brought to set aside the proceedings taken before the Collector, it is a suit for rent, and before it can succeed, it must be shown that the defendants are in default. They plead that they have discharged their liability by obtaining a division of the crop under the procedure laid down in Sections 69 and 70, Ben. Ten. Act. The plaintiff''s share has been set apart and there is nothing more to be done by the defendants to enable the plaintiffs to get possession of it. The defendants are, in ray opinion, no longer liable. They were entitled to their share which they took and it is not shown that they have interfered with the share awarded to the landlord nor are they any longer concerned with it. The matter rests between the plaintiffs and the Collector. If the case of Suraj Prasad Mahajan v. Karu Singh [1919] 4 Pat. L.J. 32 (sic) stood alone no doubt we should be bound be follow it, but more recent cases in this Court have taken a different view. In (Rani) Bhuneshwari Kuer @ Bacha Saheba Vs. Sukhdeo Singh and Others, decided by Jwala Prasad and Kulwant Sahay, JJ., it was laid down that where there is a simple division of the crops held under the batai system, as here, each party is entitled to receive from the Collector who takes possession of the crops his share therein, The party taking his share from the Collector will not be liable to the opposite party for that party''s share.

If a party does not choose to take his share it will remain in deposit with the Collector. The judgment then points out that the only order the Collector can pass in such a case is to order the deposit of the share to the credit of the party entitled. In the present case the Nazir''s report which the Collector accepted shows that the landlord''s share was deposited with third parties as the landlords were not present to take it. The liability of the tenants was then at an end. They cannot be sued for the landlords'' share In the case of Binode Behari Bose and Others Vs. Tokhi Singh and Another, the Collector passed orders to the effect that the khasra was fair and should be accepted and the landlord''s shares, if not accepted, might be sold and deposited in the treasury and by a subsequent order he recorded that the sale proceeds had been deposited and the case disposed of. My learned brother, with whose decision Das, J., agreed, in that case held that such orders were final and entitled the landlord to withdraw the money and dismissed his suit claiming rent. If and in so far as there is any conflict between the decision in Suraj Prasad Mahajan v. Karu Singh [1919] 4 Pat. L.J. 32 and the two later cases above referee to, in my opinion the later cases should prevail.

The learned Judge of this Court before whom the case came on second appeal felt himself bound by Suraj Prasad Mahajan''s case [1919] 4 Pat. L.J. 32 and being of opinion that no final order has been passed affirmed the decision of the District Judge. In my opinion, it can make no difference whether the orders of the Collector are in form such as can be enforceable as a decree. It cannot reasonably be disputed that the intention of the order was to direct that the landlords were entitled to that part of the crop which had been set apart and deposited on their account. It might have been a better course for the Collector to have directed that their share, if not accepted, should be sold and the proceeds paid into the treasury. Had any application been made by the plaintiffs to get possession of their share no obstacle would have been placed in their way. Had a further order of the Collector been necessary for this purpose it was for them to approach the Collector. The fact that they did not do so and that they made no attempt to obtain possession of their share, which was all they were entitled to, gives them no right to proceed against the defendants who are in no way in default, and, in my opinion, this action cannot be maintained.

A further point was raised which went to the validity of the proceedings before the Collector. It was said that they had no opportunity of raising objections to the Nazir''s report before the Collector tinder Section 70(4). The sub-section does not require that notice shall be served on the parties to appear and take objection. The only notice required under the section is that prescribed in Sub-section (2) which was duly served.

Allanson, J., whose decision is now under appeal considered this question and I agree with him when he says when notice has been issued under Sub-section (2) both parties must be presumed to be aware of the proceedings and it is the duty of any party having any objection to the action of the officer who has made the division or appraisement to go without undue delay to the Collector.

It was further argued that as it was found by the trial Court, and affirmed in the lower appellate Court, that the proceedings on the spot in connexion with the crop were very unsatisfactory and that the plaintiff''s takhmina papers and evidence were preferable to the Nazir''s report as to the quantity of the crop we, are bound by this findings. The question of the accuracy of the Nazir''s report was a matter which could be questioned by objection taken before the Collector and, if the parties, or either of them, after due notice of the proceedings did not raise any objections to the report at the proper time, I consider that they are not entitled to do so by a suit of this nature. The proper tribunal to consider such objections was the revenue Court.

In my opinion this appeal should be allowed. The judgment and decree affirming those of the lower Courts will be safe aside and the suit dismissed in so far as it claims rent for the year 1327 Fasli. The appellants are entitled to the costs of their appeal hers and in each of the lower appellate Courts. The plaintiffs are entitled to the coats of the suit in the trial Court in proportion to their success.

Ross, J.

I agree.