Madhusudan Nath Tewari vs Hiroo Ram Panday and others

We are of opinion that this appeal must be allowed and that the Court of first instance was right in dismissing the suit. It was brought to recover 12 annas of a jagir, named Kalheypat, possession of the whole of which has come into the hands of the Appellant by transfer from an auction-purchaser under a decree for arrears of rent. It is alleged that the jagir, when the sale took place, was the joint property of four brothers and that nothing passed by that sale beyond the right, title and interest of one of the brothers Hiroo Ram Panday, against whom the rent decree had been obtained. The Plaintiffs sue to get back the other three equal shares.

It appears that the jagir is one governed by the provision of Act I of 1879, the Chota Nagpore Landlord and Tenant''s Act, that no sale of the tenure itself could take place under a decree for arrears, but that with the consent of the Commissioner, the right, title and interest of the judgment-debtor could be sold.

The Lower Appellate Court thought it must be held that the consent of the Commissioner was limited to the sale of the individual right, title and interest of Hiroo Ram, and that the sale conveyed nothing more. We think that the Commissioner''s sanction under sec. 124 must be held to apply to all the right, title and interest represented by the judgment-debtor Hiroo Ram in the decree passed against him. There is no question as to his having been sued as representing the full ownership of the jagir. The arrears claimed had accrued in the lifetime of the father of the four brothers, and the suit was brought against the eldest of the brothers who held possession as manager and who was the sole registered ilakadar or person held responsible in the zemindar''s book.

The decree undoubtedly related to the arrears due in respect of the whole tenure, and the first debtor was undoubtedly sued as being in possession of the whole tenure. His right, title and interest sold would, under the circumstances of the case and by the incidents attaching to such tenure in Chota Nagpore, include the right, title and interest of any person claiming such jointly with him and inseparably united with his own.

Many authorities have been cited before us on either side in support of the opposite view taken by the parties of what really passed by the sale. But it is enough to say that the circumstances of the particular case must determine this question, and that we are satisfied that in this case the sale, as sectioned by Commissioner, disposed of the whole right, title and interest represented by Hiroo Ram. The decree of the Lower Appellate Court is therefore set aside and that of the first Court restored with costs.