Jaga Singh and Others vs Basdeo Singh and Others

This appeal arises out of a suit to declare title and recover possession over 5 bighas, 3 kathas, 2 dhurs of land. It is common ground that this was formerly the occupancy holding of Duli Rai. In 1927 the plaintiff-respondent brought a mortgage suit against Duli Rai to enforce a mortgage on this land. He obtained a preliminary decree dated 23rd June 1928, and a final decree dated 25th February 1929. The mortgaged property was put to sale in Execution Case No. 12 of 1930 and was purchased by the decree-holder, now the plaintiff, who took delivery of possession on 19th September 1930. The landlord''s consent was not taken to the purchase of this property by the plaintiff, but after the passing of the Bihar Tenancy Amendment Act of 1934 he deposited the fee u/s 26-0 of the Act with the Collector on 12th March 1937. That is the plaintiff''s title which the Courts below have accepted and given him a decree against which an appeal is preferred by the principal defendant who is the landlord of the holding; This defendant brought Rent Suit No. 2376 of 1927 against Duli Rai and obtained an ex parte rent decree on which he took out Execution Case No. 992 of 1928 and put the holding to sale on 18th December 1928, about six months after the preliminary mortgage decree of the plaintiff.

The landlord himself became auction-purchaser and took out his delivery of possession on 28th September 1930, that is nine days after the delivery of possession, in favour of the plaintiff.

The plaintiff applied under Order 21, Rule 90, to set aside the sale alleging that the processes had been suppressed. The application was rejected by the first Court on 7th April 1931, and it is the plaintiff''s allegation that his actual dispossession by the defendant took place on 8th April 1931. The plaintiff appealed against the order of 7th April dismissing his application under Order 21, Rule 90 and an event that took place some time in the year 1931 was the death of the original tenant, Duli Rai. The plaintiff''s appeal succeeded and the District Judge set aside the sale on 16th April 1932. On 12th September 1932 the plaintiff moved the Court for restitution of the property and obtained on 13th February 1933 an order of the first Court for restitution, but this order was on 19th August 1933, set aside on appeal by the District Judge because the rent decree had not been set aside or varied so as to import the provisions of Section 144 and also because it was not alleged by the plaintiff that his dispossession had been by the act of the Court in delivering possession on 28th September 1930 but by an act of the opposite party, the auction-purchaser.

In revision this Court, on 1st February 1934, declined to interfere. The present suit was instituted on 1st February 1936 by the plaintiff to recover possession. In the meantime the amendments made in the Bihar Tenancy Act, by the Local Act 8 of 1934 had received the assent of the Governor on 31st October 1934 and came into force in June 1935. The enactment of Section 26-O gave the plaintiff a right to pay to the landlord or deposit with the Collector the prescribed fee in respect of the transfer and Sub-section (3) enacted that the consent of the landlord should be taken to have been given to the transfer on the day on which the receipt for the same is granted by the Collector. As already stated, the deposit was made on 12th March 1937, which is during the pendency of the suit.

The suit has been decreed on the view that Sections 26-N and 26-O, Bihar Tenancy Act, are retrospective and that the plaintiff by making the deposit referred to has perfected his title which cannot be defeated. The District Judge relies on the decision of the Privy Council in AIR 1936 49 (Privy Council) and subsequent decisions of this Court.

In second appeal it is contended that the object of Section 26-N and 26-O being as was stated in the judgment of the Privy Council "to quiet old titles" they must be consider-ed to have retrospective effect in favour of a raiyat who is in possession of the land transferred to him but not in favour of one who is out of possession so as to enable him to disturb the landlord who has lawfully entered. The second point taken is that the suit is barred by the special period of two years'' limitation laid down in Article 3 of Schedule 3 to the Bihar Tenancy Act.

As to the first point, we can find nothing in the judgment of the Privy Council in AIR 1936 49 (Privy Council) to suggest that their Lordships intended that distinction should be drawn between cases in which the landlord is the plaintiff and cases in which the tenant is the plaintiff. The case before their Lordships was one u/s 26-N, but in the course of their judgment their Lordships referred to Section 26-O and said:

It will be seen that in the case of a transfer made after 1st January 1923, but before 10th June 1935, the provision is that the transferee may pay or de-posit the landlord''s transfer fee and thus perfect his title.

There is no suggestion that a transferee shall be incompetent to make the payment or that the Collector shall refuse to receive money in any case in which the transfer is impugned in a pending suit. We find nothing here to warrant us in drawing a distinction between pending suits in which the landlord is a plaintiff and pending suits in which the landlord is a defendant. In the cases of this Court to which we have been referred we are unable also to find that such a distinction is to be drawn. Mr. Nawal Kishore Prasad II was in fact forced to put his argument in this form because, so far as cases in which the landlord is plaintiff are concerned, the decisions hopelessly concluded him.

In Walihan v. Parmeehwar Narain AIR (1937) Pat 682 the landlord''s transfer fee u/s 26-0 had been deposited after the trial Court as well as the Appellate Court had decreed the landlord''s suit and it was contended that the title of the transferee had become extinct by the decrees already passed against him before he made the deposit.

The contention was negatived. It was held that the title of the transferee would not become extinct by the passing of a decree against him unless and until such decree has become final as it might by the lapse of the period of limitation for an appeal and the omission of the defendant to file an appeal against the decree. So far as Section 26 N is concerned, there is a direct authority in Thakur Rai v. Issardayal Prashad AIR (1938) Pat 659 that in applying this Section we cannot draw distinction between the oases in which the landlord is a plaintiff and cases in which the tenant is a plaintiff for the suit out of which the appeal arose was one instituted by the transferee to recover possession. The only case which has not yet directly arisen seems to be the case where both the transferee is the plaintiff and the Section applicable is not Section 26-N but Section 26-0.

In my opinion, it is not possible to draw a distinction and to say that the observations of the Privy Council do not apply in the case like the present either on the ground that the plaintiff is the transferee or on the ground that the Section we are applying is Section 26-O and not Section 26-N. That being so, the plaintiff was entitled to a decree unless the suit is barred by limitation.

Mr. Nawal Kishore Prasad II argued that the suit was well within the definition in Article 3 of Sen. 3, Tenancy Act, being a suit to recover possession of land claimed by the plaintiff as a raiyat or under-raiyat and the defendant in the suit being in fact the landlord of the holding.

We have not how-ever to give our own reading of the Article as if the matter were res integra; we are bound to follow the decision of the Special Bench of this Court in Gajadhar Rai v. Ram Charan Gope AIR (1930) Pat 256. There, on a review of all the authorities, it was held that where a landlord in execution of a decree for arrears of rent puts the holding to sale, purchases it himself and obtains delivery of possession as auction-purchaser such dispossession of the tenant is not a dispossession by the landlord within the meaning of Article 3 of Schedule 3, Bihar Ten. Act, so as to make that Article applicable. A suit to recover possession is governed by the ordinary law of limitation. The case before the Special Bench was a case in which the landlord had obtained delivery of possession through the Court and Mr. Nawal Kishore Prasad II tries to distinguish it on the ground that in the present case, on the plaintiff''s own pleading, the delivery of possession issued by the Court was fraudulently suppressed and the defendant did not take possession until 8th April 1931, when without the assistance of any Court officer he is said to have forcibly dispossessed the plaintiff. But the distinction will not assist the defendant when we look to the occasion which led to the dispossession.

It was on 7th April 1931 that the plaintiff''s application under Order 21, Rule 90, was rejected and it was on the very next day that possession was taken by the defendant according to the pleadings. So there can be no doubt in what capacity the defendant considered himself to be taking possession or in what capacity the plaintiff thought the defendant to be ousting him. We hold, therefore, that the case falls within the principle of the Special Bench decision cited and the plaintiff was entitled to bring his suit within twelve years from the date of dispossession, that is to say both points taken in the appeal fail, and we dismiss the appeal with costs.