Mt. Nanha Kuer and Others vs Mt. Khubsurat Kuer

Mahabir Prasad, J.—This appeal by the plaintiff raises the question whether a tenant, whose holding was sold in execution of a decree, for rent but was not reduced to possession by the landlord by obtaining delivery of possession from Court, is entitled to make an application for restoration of that holding u/s 3, Bakasht Restoration Act, beirjg Bihar Act IX [9] of 1938.

It appears that the plaintiffs were occupancy tenants of a raiyati holding measuring 4 bighas 4 kathas. A suit for arrears of rent was instituted and a decree obtained. In execution of the decree the holding was sold on 22nd September 1936, and purchased by the landlord defendant 1. The sale was made absolute but defendant 1 did not get delivery of possession through Court until 18th December 1939. On 11th October 1938, Bakasht Restoration Act was assented to by the Governor General and came into force. An application u/s 3 for restoration of bakasht lands was, under the provisions of the Act, to be made within one year from the date of the Act coming into force. The plaintiff, therefore, filed an application for restoration on 14th October 1939. The holding was ordered to be restored to the plaintiff on 31st May 1940, as during the pendency of this application the landlord had obtained delivery of possession on 18th December 1939. The landlord moved the Commissioner of Fatna against this order of the Bakasht Restoration Officer who by his order dated 29th May 1941, set aside the order restoring the holding of the plaintiff on the ground that the order was without jurisdiction in so far as the landlord had not come in possession of the holding on the date of the application, and the plaintiff''s application for restoration was not, therefore, maintainable under the Act. The plaintiff was, therefore, obliged to bring the suit for a declaration that the order of the Commissioner setting aside the order of the Bakasht Restoration Officer was without jurisdiction as u/s 22 of the Act, the order passed by the Bakasht Restoration. Officer was final and was not subject to appeal or revision or even to be challenged by way of suit in a Court of law.

The learned Munsif held that the order of the Commissioner in setting aside the order of the Bakasht Restoration Officer was illegal and without jurisdiction, and, as such, the civil Court had jurisdiction to set aside that order. He accordingly decreed the suit and directed that the plaintiff do recover possesion over the disputed holding.

On appeal, the learned Subordinate Judge in a well-considered and an admirable judgment has set aside the decision of the learned Munsif and dismissed the suit.

The point that arose for decision before the learned Subordinate Judge was one which was uncovered by any authority and had to be dealt with as a question of first impression. The interpretation put upon Section 3, Bakasht Restoration Act by the learned Subordinate Judge is perfectly correct and must be accepted. It is clear from the wording of Section 3, Bakasht Restoration Act that no application for restoration of a holding u/s 3 can be made unless the holding is in possession or control of the landlord. Mere sale of the holding does not put the holding either in possession or under control of the landlord. The material date on which the holding has to be in possession or under control of the landlord is the date on which the application is made and not the date (?) on which the order restoring the holding is to be passed. In the circumstances of the present case, the application for restoration of the holding was made when the holding was in fact and in law in possession land under control of the applicant himself. The learned Subordinate Judge has rightly held that the Munsif was in error in interpreting the word "control" by applying the dictionary meaning of the word and holding that after its sale, it was under the command of defendant 1 as he could have at any time got dakhaldehani over it within three years of the date of the sale. The word "control" has not that meaning. The learned Subordinate Judge is right in saying that the word "control" was introduced in the section by the Legislature in order to prevent landlords from making mala fide settlement and thus put the holding beyond the reach of the tenants entitled to apply for restoration under this Act. It must, therefore, be held that in the circum. stances of the present case the plaintiff was not entitled to make an application u/s 3, Bakasht Restoration Act and the order of the Bakasht Restoration Officer restoring the holding to him was ultra vires and without jurisdiction.

In this view of the matter, it is unnecessary to consider as to whether the Commissioner as an appellate or revisional authority had jurisdiction to get aside the order of the Bakasht Restoration Officer, The learned Subordinate Judge has, however, held that although there is no express provision providing for an appeal against an order of the Bakasht Restoration Officer, the order of the Commissioner setting-aside the order of the Bakasht Restoration Officer is not without jurisdiction and is not liable to be challenged in this Court. Even assuming, however that the Commissioner had no such jurisdiction, it is clear that the plaintiff cannot succeed in the suit. The holding cannot be restored to him on the strength of the order passed by the Bakasht Restoration Officer which order, as already held by the Court of appeal below and affirmed by this Court is ultra vires and without jurisdiction.

In the result, the appeal fails and is dismissed with costs.

Manohar Lall J.

I agree. We are bound to give effect to the law as we find it enacted in Section 3. The critical words are "is in the possession or under the control of the said landlord." How can a landlord be in control of the holding when it is still in possession of the tenant? It is conceivable that the delivery of possession may be refused to the landlord if he fails to take proper steps within the law of limitation, or for some other reasons he fails to get actual possession from the tenant. A reading of Section 6 of the Act also shows that the objections which are open to the landlord are only such objections which can be made only if the landlord has secured possession or has bona fide settled it with a third person. The scope of the enquiry to be made by the Collector u/s 6(2) also indicates that the enquiry must relate to the state of affaire when the landlord has obtained possession or has delivered possession to somebody else on his behalf, Again, Section 8(1)(e) enacts that if the Collector is satisfied, he shall order that the raiyat shall be put in possession of such land. This provision also assumes that the raiyat has been dispossessed. It is needless to labour the point further because it is obvious to me that a person cannot be restored to possession unless he baa lost possession. The very preamble of the Act is "to restore the lands to the former tenants," and indeed the Act itself is entitled the ''Bihar Restoration of Bakasht Lands."

It was argued by the learned Government. Pleader that if this interpretation is to be accepted, it will mean that the landlord will deliberately refrain from taking possession after executing the decrees resulting in the sales of the holding and thus, the very object of the Act will be frustrated. This argument does not appeal to me because it is open to a litigant to take advantage of a loophole in the Act which seeks to curtail his ordinary rights, and further, I do not see any hardship because it was open to the tenant to pay up the decretal amount before his holding was sold.

For these additional reasons, I agree with my learned brother that the appeal must be dismissed with costs. I wish to record my high appreciation of the excellent judgment of the learned Subordinate Judge, Mr. S.N. Prashad.