AI Structured Summary
Not yet generated for this judgment
Judgment
Macpherson, J.—The appellant who is the landlord of village Dumdumi in the Raghunathpur Munsiffi of the District Manbhum sued the plaintiffs-respondents and two others for the case of a six annas share in the village which these plaintiffs hold. He obtained a decree which he executed u/s 208 of the Chota Nagpur Tenancy Act, 1908, as a rent decree and on sale of the tenancy, purchased it at auction. The suit out of which this second appeal has arisen, was brought by the plaintiffs, the Chatterjis, to set aside the ex part decree and the sale on the ground of fraud and want of jurisdiction.
The Courts below have granted all the reliefs prayed for except that the ex part rent decree was vacated only in so far as plaintiffs Nos. 1 to 3 were concerned.
The facts found are that the plaintiffs Nos. 1 to 3 were minors when they were sued as defendants in the suit in the rent Court and that accordingly the decree passed in that suit being effective only against some of the persons interested in the tenancy, could not be executed u/s 208 of the Act but at most u/s 210(b) against the major defendants Nos. 4 to 8 under which the right, title and interest of those judgment debtors could be sold by the procedure laid down for execution of a money decree. It has been held by the Courts below that the sale u/s 203 which was a sale of the tenancy, was without jurisdiction and did not operate to transfer the tenancy or even the right, title and interest of judgment debtors No?. 4 to 8 which might have been sold u/s 210(6) or indeed anything whatsoever.
On behalf of the landlord appellant it is urged that the sale in execution of the decree is not void but is binding so far as the interest of the judgment debtors who were defendants Nos. 4 to 8 is concerned.
In my opinion the submission is wholly untenable. The sale u/s 208 was entirely without jurisdiction for the reason already given that the decree upon the basis of which it was held, was against only a part of the tenancy interest whereas a sale u/s 208 is only valid when held in execution of decree for the rent of the tenancy obtained against the whole of the tenancy interest. The suggestion that such a sale, though not valid in respect of the tenancy, should at least bind the interest of those defendants judgment debtors against whom the decree for cess was valid, will not bear examination for a moment. The effect of a, sale u/s 208 has recently been considered by their Lordships of the Privy Council in AIR 1933 122 (Privy Council) It was there held that a sale on a decree for rent which did not include the whole tenancy interest was not a sale u/s 208 so as to affect the subordinate interest which were u/s 16 of the Bengal Rent Recovery (under tenures) Act 1865 liable to cancellation upon a valid sale under that section, it was further held that neither Section 214 nor any other provision of the Chota Nagpur Tenancy Act, 1908, operated to prevent the Civil Court from entertaining a suit in this regard. As the sale u/s 208 was ultra vires, their Lordships pointed out that to take advantage of Section 214 the appellant must first establish that the sale was a sale made under Chap. XVI, of the Act which includes Sections 135 to 229, which in effect is a question of jurisdiction. Under Chap. XVI, of the Act they proceeded, a statutory jurisdiction is conferred on the Revenue Courts, but that jurisdiction must be exercised within the statutory powers conferred. If then as already stated, it is not competent to order a sale of the tenure u/s 208 unless the whole interest in the tenure are represented before the Court, it is clear that the order for sale of the tenure in the present case was ultra vires of the Revenue Court, and it follows that the sale was not made under this Chapter and was outside the jurisdiction of that Court. The sale of the tenancy u/s 208 being without jurisdiction did not affect the interest of any of the judgment debtors even though their interest might have been sold u/s 210(6). The property was sold as a whole and either the sale of the whole property was valid or not binding at all. The sale cannot be split up iii the manner desired by the appellant.
Upon this view the judgments under appeal are correct and I would dismiss this appeal with costs.
Agarwala, J
I agree,