Mahomed Nasin vs Kashi Nath Ghose and another

This is an appeal from the decision'' of the additional Subordinate Judge of Sylhet affirming the judgment of the Munsiff of Maulavibazar by which the Plaintiffs'' suit has been in part dismissed and in part decreed. The suit was brought by the Plaintiffs upon the allegation that they had purchased a taluk, called Rai Gourhari Singh, at a revenue sale, and that they were consequently entitled to set aside the Sikmi Haziran Taluk alleged by the Defendants to be held by them under the said taluk Gourhari Singh. The Defendants contended that their Sikmi Haziran Taluk had been in existence from the time of the Permanent Settlement. The area held by Defendants amounted to 2 gundas 6 khadas odd; without entering into a detailed statement of all the facts of the case, we may mention that the Munsiff found that the Defendants had succeeded in establishing that they held a Sikmi Haziran Taluk within taluk Gourhari Singh from the time of the Permanent Settlement in respect of 7 kanis odd of the lands in their possession, but inasmuch as they failed to show that the remaining portions of the land included in plots Nos. 1 to 13 had been in their possession as part and parcel of their said Sikmi Hazirau Taluk from the time of the Permanent Settlement, he made a decree in respect of those plots, namely, plots Nos. 1 to 13 in favor of the Plaintiff''s, dismissing the suit with respect to plots Nos. 14 to 16 which comprehended 7 kanis odd.

Apparently both sides appealed to the Subordinate Judge, and the learned Subordinate Judge dismissed both appeals.

The Defendant No. 8, Mahomed Nasin, has appealed specially to this Court from the judgment of the Subordinate Judge, and Dr. Asutosh Mookerjee has taken three points on his behalf. He contended, in the first place, that the Plaintiffs, who were admittedly the purchasers not of the entire estate but only of a part thereof, were not entitled to maintain this action in respect of the lands of the taluk which the Defendants failed to show had been in their possesion by virtue of Sikmi Haziran right from the time of the Permanent Settlement; secondly, he contended that, upon the words of sec. 71 of the Assam Land and Revenue Regulation, the Plaintiffs were not entitled to a decree in respect of these lands covered by the plots Nos. 1 to 13 inasmuch as the rights under which the Defendants claim to hold them do not amount to an encumbrance created by any person other than the purchaser; and thirdly, he contended that the Defendants had at least acquired an occupancy right in respect of these lands.

With reference to the first contention, it is to be observed that there is a great difference in the language of the Act in force in Bengal and the Assam Regulation. Chapter V of the Assam Land and Revenue Regulation (I of 1886) declares the liability for land revenue. It declares the joint and several liability of all persons in possession of an estate, or any part thereof, for land revenue. Sec. 65 declares that when there are several recorded proprietors of a permanently-settled estate, anyone of them, whether he is entited to a share of the estate or to particular lands comprised therein, may, by a written application to Deputy Commissioner specifying his share of the estate, or the particular lands therein to which he is entitled, get his revenue apportioned; sec. 68 declares what is to be done when an arrear has accrued, and see. 70 proceeds to provide that when an arrear has accrued in respect of a permanently-settled estate, or of an estate in which the settlement-holder has a permanent, heritable and transferable right of use and occupancy, the Deputy Commissioner may sell the estate by auction : Sub-sec. (2) of that section runs as follows :-- "If the arrear accrued on a separate account opened under sec. 65, only the shares or lands comprised in that account shall, in the first place, be put up to sale; and if the highest bid does not cover the arrear, the Deputy Commissioner shall stop the sale, and direct that the entire estate shall be put up for sale at a future date to be specified by him; and the entire estate shall be put up accordingly and sold. ''''Sub-sec.(3) says "no property shall be sold under this section for any arrear which may have become due in respect thereof while it was under the management of the Court of Wards." From sub-sec. (3) it would appear that the word property was used intentionally to cover both the entire estate as well as the shares or lands in respect of which separate accounts had been opened. Then sec. 71 provides that property sold under sec. 70 shall be sold free of all encumbrances previously created thereon by any person other than the purchaser. It will be noticed that in Act XI of 1859 the word used is estate, hero in sec. 71 the words used are property sold under see. 70, and the property to which reference is made in sec. 70 includes both an estate as well as a share in respect of which revenue has been separately apportioned, In view, therefore, of the express term "property" used in see. 71, we are unable to accede to the contention put forward by Dr. Asutosh Mookerjee that the purchaser of a part of a permanently-settled estate is not entitled to the benefit of sec. 71. In this particular case what seems to have happened is that revenue in respect of certain lands had been separately apportioned, arrears fell due in respect of the remaining portion of Taluk Gourhari Singh and the taluk minus those lands was put up to sale and purchased by the Plaintiffs. It seems to us, having regard to the terms of sec. 71, that the view taken by the lower Court is correct, and that the Plaintiff''s are entitled to maintain this action.

We now come to the second contention, namely, that the right, under which the Defendants claim to hold these lands in respect of which their claim has been disallowed, does not come under the expression ''encumbrances previously created thereon by any other person than the purchaser.'' The contention proceeds upon the difference in the language of sec. 37, Act XI of 1859, and sec. 71, Regulation I of 1886. Sec. 37 of the Act of 1859 says that the purchaser of an entire estate, sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all encumbrances which may have been imposed upon it after the time of settlement. Dr. Asutosh Mookerjee contends that, in sec. 71 of the Assam Regulation, the expression used is ''encumbrances previously created thereon,'' and that, in the present case, the encumbrance sought to be sot aside was not created by the previous holders of the taluk, for, he says, it has been found that it was apparently by adverse possession against the owners of the taluk that the Defendants got into possession of these extra lands over and above what they held from the time of the Permanent Settlement as their Sikmi Haziran Taluk, and, therefore, it could not be said that it is an encumbrance created thereon. Now, in considering this matter, we have to keep in view the purpose for which the legislature provided that an auction-purchaser at revenue sale shall get the estate free from encumbrances. The object, as we understand it, is that he should get the estate in such a way and in such a condition that ho may be able to pay the Government revenue assessed thereon at the time of the settlement, and that no act, which may have been done by the holders of the property, or estates, after the settlement by which the estate becomes deteriorated or rendered incapable of yielding the revenue fixed upon it at the time of the settlement, whether actively or passively done, should he allowed to affect him. The words of Act XI of 1859 and of Regulation I of 1886 cannot be said to have different meanings. If we were to hold that the encumbrance which could be sot aside under sec. 71, must be an encumbrance actively created by the previous holder, it would amount to this that any acquiescence or laches either wilful, or arising from pure negligence on the part of the holder, by which the taluk or estate becomes incapable in the hands of the purchaser of yielding the Government revenue, would be outside the scope of this section. As at present advised, it seems to us that we cannot acquiesce in that view. We think that the conclusion of the Sub-Judge was right, and that we must overrule this contention. As regards the occupancy right claimed by the Defendants, it is to be observed that they never put forward in their written statement, or, so far as we can gather, at any previous stage of this suit, that they were holding as ryots. They claimed to hold the lands covered by plots Nos. 1 to 14 as part and parcel of their Sikmi Haziran Taluk and not as cultivating ryots of those lands. It seems to us, therefore, that it would not be right to allow them to change their ground in this Court. Such a contention requires to be dealt with upon evidence, and it does not seem that there is any fact shown in the case which would enable us to come to the conclusion that the Defendants hold or cultivate these lands as ryots. We accordingly dismiss this appeal with costs.