Pratab Udai Nath Sahi Deo vs Nand Kumar Lal and others

Mohammad Noor, J.—This second appeal is against an appellate order of the Judicial Commissioner of Chota Nagpur and arises out of an execution proceeding. The decree under execution is for rent of a tenure situated in the District of Ranchi. The tenure is described in the first Record-of-Rights as "mukarrari kharidgi non-resumable." It seems that later on there was some dispute between the appellant proprietor and the respondent-tenure-holders about the nature and status of the tenure and the appellant in. the plaint of the rent suit as well as in the execution petition described the tenure as "resumable jagir." The Deputy Collector before whom the execution was started ordered the appellant to amend his execution petition by describing the tenure as it was described in the former Record-of Rights. On the appellant''s failing to do so, his execution petition was struck off. This order has been upheld in appeal by the Judicial Commissioner and the decree-holder has preferred this second appeal.

I do not know of any law under which it is incumbent upon a decree-holder to describe the nature of the tenure or to do so necessarily according to the Record-of-Rights. The Record-of-Rights has certainly a presumptive value and unless rebutted must be taken to be correct. But it is one thing to say that the Record-of-Rights must be presumed to be correct; it is another thing to force the landlord to accept it on pain of his losing the right of realizing rent which is the effect of the order of the Court below. The question of the status of a particular tenure is not for the Rent Court to decide; it is one for the decision of a civil Court in a properly framed suit. Neither the Chota Nagpur Tenancy Act nor the Sale of Tenures Act makes it incumbent upon the plaintiff to describe the nature of the tenure in a rent suit. It is enough if the landlord claims rent of the tenure and as long as the rent is not disputed, the matter is outside the scope of the Rent Court. In this, particular case it appears that when the proceeding in execution was going on, the parties were fighting before the officers of the revisional survey and I am informed that since then the tenure has been described in a way different from the one in which it was described in the previous survey. It is not for me to say which of these two entries is correct; nor is it absolutely necessary to go into this matter in the execution proceeding. The only object in describing the nature of the tenure, is to give information to the intending bidders. It will be enough if in the sale proclamation the two entries in the Record-of-Rights be mentioned or it is mentioned that the tenure is of one description according to the decree-holder and of another according to the judgment-debtors, leaving it to the future purchaser to have the matter settled in the civil Court one way or the other. It is not necessary for the Executing Court to go further. It will be obvious that if the decree-holder be asked to describe the nature of the tenure in a particular way it may amount to an admission on his part and may debar his remedy in the civil Court. On the other hand, any statement by the decree-holder about the nature of the tenure to the prejudice of the judgment-debtors will in no way be binding upon him. It will be enough to note that the judgment-debtors do not accept the description of the decree-holder.

I set aside the order of the Courts below and direct that the execution case be restored to its former number and proceeded with according to law. If it be necessary to issue a sale proclamation, the nature of the tenure will be described according to both the Record-of-Rights or if the parties so prefer and the Court so directs, the statements of both the parties should be mentioned. Parties to bear their own costs.