Dindeyal Ram vs Ramzan Mistri

Manohar Lall, J.—The only question for decision in this appeal is whether the Courts below were right in refusing to apply the provision of Section 47, Chota Nagpur Tenancy Act, to the plot which was sought to be sold in execution of a rent decree obtained, by the respondent.

The plot in question is No. 771 and is a part of Khata No. 74. The learned Advocate for the appellant stresses, relying upon the words of Section 47 that:

No decree or order shall be passed by any Court for the sale of the right of a raiyat in his holding or any portion thereof, nor shall any such right be sold in execution of any decree or order.

The Courts below, however, have found that plot No. 771 had long ago lost its nature of raiyati character and not only had the land completely lost its original nature of agricultural land, but also it was not necessary for the owners for the cultivation of the other raiyati lands. The learned Judicial Commissioner says:

For the purpose of cultivation they have houses in other villages. These two houses are meant to be used as shops and the judgment debtors were using these houses as shops arid not appurtenance to the agricultural holding Even the witness of the appellant judgment debtor stated that they had separate residential house in their village and the attached houses were being used as shops.

A little later on, the learned Judge makes similar observations:

Plot No. 771, though noted as part of the raiyati holding No. 74 once upon a time in 1908, it has altogether lost its nature as raiyati land. It is now a residence of shop-keepers, and its possession is quite unconnected with the agricultural operations on the west of the holding and in fact on other portions of the holding the judgment-debtor, and his co-sharers have houses. Here it might have been acquired once upon a time for cultivation though even this is not clear, but for some time past it is being used as residence of shopkeepers and it would be highly inequitable to extend to this sort of land and house obviously unconnected with agricultural operations, the protection from saleability by money decree which was intended only for agricultural lands.

The view of one learned Judicial Commissioner is supported by the oases in Ram Charan v. Govind Ram AIR 1935 Pat. 105, and Ghasiram Marwari v. Shiba Prosad Singh A.I R. 1937 Pat. 321 and an unreported decision given by a Division Bench of this Court in Misc. Appeal No. 318 of 1933 decided by the late Chief Justice, "Courtney Terrell, C.J., and Varma, J., on 27th March 1936. The learned Advocate for the appellant drew our attention to the case in Mt. Bibi Aisha Vs. Mahabir Prasad, and argues that it is immaterial to what use the land is now being put if it is held or found that the original character of the land of which the portion in dispute is now sought to be sold was raiyati.

In face of the decisions, cited above, this argument is not acceptable to us. It may appear somewhat hard if the point of view of the judgment-debtor alone in seen. On the other hand, the decree-holder is losing his valuable right of a decree which he has obtained from competent Court.

I would dismiss this appeal, but there will be no order as to costs.

Reuben, J.

I agree.