Hooghly Trust Ltd. vs Shaikh Ismail

Mookerjee, J.—These two appeals arise out of two suits brought by the Plaintiff Appellant for assessment of fair rent on declaration of title. This was resisted by the Defendants claiming. that the suit lands were niskar. Both the courts below have found in favour of the Defendant and dismissed the Plaintiff''s suits.

The Plaintiff has got eight annas patni and eight anna darpatni right over the disputed lands from the Hooghly Bank Ltd. The latter had purchased the disputed properties from one Nilima Mukherjee who had obtained the suit lands in an astam sale. The patni was held under the Maharaja of (sic) who had brought the tenure to sale under the astam proceeding on November 17, 1941. The particular holdings had been originally recorded during the cadastral survey operations a being liable to assessment of rent. The Plaintiff based (sic) claim on the entries so made originally in the cadastral survey records.

The defence was of a two-fold nature. It is contended that during the cadastral survey operations, proceedings were started by the tenants Defendants u/s 106 of the Benga Tenancy Act, for correction of the entries already made recording that the landlords were entitled to have the rent assessed The proceedings u/s 105 and 106 of the Bengal Tenancy Act culminated in orders passed by the revenue authorities on May 13, 1939, declaring the disputed lands to be niskar ones. The Defendants claim that the decisions so made by the revenue authorities are binding on the present Plaintiff; in any case, the lands are really niskar ones.

The Plaintiff-Appellant''s contention in this Court is that as he is in possession with the rights of a purchaser in an astam sale, clause first of Section 11 of Regulation VIII of 1819 entitles him to hold the said tenures free from all incumbrances which might have been created either by an act, or owing to the default o the defaulting tenure-holder. Further, as a purchaser in the astam sale, he is not bound by the decision of the revenue authorities declaring the tenures to be rent-free ones.

I shall first consider the second part of the argument advanced on behalf of the Appellant. After a decision is given by the revenue authorities u/s 106 of the Bengal Tenancy Act, such decision shall, u/s 107 of the Act,

have the force and effect of a decree of a civil court in a suit between the parties, and subject to the provisions of Sections 108 and 115C, shall be final.

Section 109 of the Bengal Tenancy Act further lays down that--

Subject to the provisions of Section 115C, a civil court shall not entertain and application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under Sections (sic) and 108 (both inclusive):

* * * *

It is not necessary to consider the provisos to, Section 109 on the facts of the present case.

On behalf of the Defendant, it is urged that the provisions as contained in Sections 107 and 109 of the Bengal Tenancy Act make he decision passed by the revenue authorities declaring the holdings in suit to be rent-free binding on the Plaintiffs in the same way as the same was binding on the original patnidar who had been a party to the said proceedings.

The Plaintiff, however, resists this claim on behalf of the Defendant on the ground that whatever might have been the (sic) position had there been no astam sale, the present Plaintiff is the successor in interest of the purchaser at an astam sale is not bound, or his right is not in any way affected, by the decision of the revenue authorities.

In the first place, Section 107 of the Bengal Tenancy Act makes the decision of the revenue authorities have the effect of a (sic) of a civil court in a suit between the parties. The proceedings before the revenue authorities were not between the same parties as in the present suit. The purchaser in an astam (sic) is not a representative in interest of the defaulting tenure-holder. He gets an interest which is not exactly the same as he last holder had at the time when the tenure was put up to tale. The purchaser gets the property free from all (sic) subject to certain exceptions, or in other words, practically in the same condition as the tenure was when the patni was created. It cannot, therefore, be said that the parties to the present suit are the same as the parties to the proceedings before the revenue authorities. There is much force in this contention. The position of a purchaser at a patni sale is not hit by the rules of res judicata in the same way as the defaulting proprietor. Although the position of a purchaser at a sale under Regulation VIII of 1819 may not be precisely that of a purchaser at a sale for arrears of revenue, yet he is not privy in estate to the defaulting proprietor and he does not derive his title from him, as u/s 11 of the Patni Regulation he acquires the property free from all incumbrances that might have been created upon it by the act of the defaulting proprietor or his representatives. The failure of a suit for rent by the defaulting patnidar when he had his title intact on the ground that the relationship of landlord and tenant between the Plaintiff and the Defendant was not established will not be a bar so a claim for rent by the purchaser at a sale under the Patni Regulation. Vide Satish Chandra Sinha v. Munjamati Debi (1912) 17 C.W.N. 340. See also Taraprasad Mittra v. Ram Nrising Mittra (1870) 6 B.L.R. App. 5 and Radha Gobind Koer v. Rakhal Das Mukherji ILR (1885) 12 Cal. 82 : Reference may also be made to the observations in Khantomoni Dasi v. Bijoy Chand Mahatab Bahadur ILR (1892) 19 Cal. 787, where it was held that a person who has held possession of property adversely against a (sic) proprietor cannot be allowed, in a suit for possession, to set (sic) such adverse possession against a person who has purchased the property at a patni sale, held under Regulation VIII of 1819 within twelve years from the date of the institution of the suit Relying upon the decision of Woomesh Chunder Goopto v. Raj Narain Roy (1868) 10 W.R. 15, this Court came to the conclusion that the purchaser at an astam sale is entitled to the patni free from the incumbrances which might have been created during the existence of the tenure and when the same was in the possession of the defaulting tenure-holder. In the case of a mokarrar interest which might have been created by the defaulting tenure holder, the purchaser is not prima facie bound by the same.

It is indisputable that a purchaser at a patni sale is not bound by an incumbrance which might have been created either by a positive act on the part of the defaulting tenure-holder (sic) acts of his negligence or default; they would not in any way affect the interest of the purchaser. See also Biprada Pal Chowdhury v. Kamini Kumar Lahiri (1921) ILR 49 Cal. 27 : L.R. 48 I.A. 499.

It should be further pointed out that the decision of the settlement officer under the Bengal Tenancy Act is to have the force of a decree of a civil court. But there is no provision in that Act under which the decision of the settlement officer may have any force beyond what Section 11 of the CPC properly applied to it would give. Vide Bihram Kishore Manikya v. Rajjab Ali (1929) 33 C.W.N. 1158.

The abstract proposition of law, therefore, is that it must be held that if an incumbrance is created either by an act of the defaulter or owing to his negligence, the purchaser at an astam sale is not affected thereby. This decision by itself, however, does not entitle the Plaintiff in the present case to a decree in his favour. It is open to the Defendant to show that what is described by the Plaintiff to be an incumbrance u/s 11 of Regulation VIII of 1819, is not really so. Whether it is an incumbrance or not would depend on particular facts which may be elicited. There has been no such enquiry by either of the courts below and it is not possible to come to any final decision as to whether, as a matter of fact, the Defendant''s interest, as declared by the revenue authorities, was really an incumbrance or not. Even though the decision by the revenue authorities by itself might not be binding on the Plaintiff as being res judicata between the parties, it would be still open to the Defendant to contend that he and his predecessor in interest had not been paying rent for the disputed holdings as he had done during the pendency of the proceedings before the revenue authorities. Removal of the bar of res judicata cannot, therefore, ipso facto entitle the Plaintiff to his claim being allowed without giving an opportunity to the Defendant to show that the latter has the right to hold the property free of rent.

Before these suits are finally disposed of, therefore, there has to be a further enquiry about the claims of the Defendant that the holdings are niskar ones.

The judgment and decrees passed by the courts below are set aside and the cases are remitted to the trial court for decision only on the question as to the rights of the Defendant to hold the lands as niskar ones. The parties will be at liberty to adduce additional evidence on this point only. If it is found on such evidence as may be adduced and on the evidence already on the record that the Defendant is not able to prove the niskar right, the court will proceed to assess fair and equitable rent. If, on the other hand, it is found that the Defendant has proved his niskar title, the Plaintiff''s suits must be dismissed.

The Appellant will be entitled to the costs of this Court irrespective of the result of the suits; there will be one set of hearing fee for both the appeals. Further costs will abide the result.