Ram Kirit Singh vs Rama Singh and Others

This is an appeal by defendant 1 who is aggrieved by the decision of the appellate Court decreeing the suit of the plaintiffs-respondents after holding that the proceedings under the Restoration of Bakasht Lands Act (Act 9 [IX] of 1938) were ultra vires. The facts are these. The respondents purchased on 10-8-1932 by a registered sale deed a portion of the holding appertaining to Khata No. 3 from the tenants defendants 1 to 4 and the father of defendant 5. The purchase was not recognised by the landlord, defendant 6, who in the year 1935 in execution of a decree for, rent which he obtained against his recorded tenants purchased the property The trial Court held that after the purchase the plaintiffs were dispossessed and were not recognised as tenants by the landlord who took khas possession. The appellate Court, however, has come to the conclusion that defendant 6, the landlord, did not take delivery of possession, but allowed the plaintiffs to continue in possession after taking salami and issued receipts for rents to the plaintiffs. Thereafter, the original tenants made an application to the Collector u/s 3, Restoration Act, and notwithstanding the opposition by the landlord and the plaintiffs they obtained an order on 5-10-1940 that they should be restored to possession after payment of the rent due to the landlord for the relevant period but at a reduced rate. The plaintiffs accordingly instituted a suit giving rise to this appeal on the 122-1940, for a declaration of their title to and for confirmation or in the alternative for recovery of possession of 495 acres being part of khata No. 3 which they had purchased from the tenants as stated above. The plaintiffs urged that the order of the Rent Reduction Officer was ultra vires as on the date of the order the plaintiffs were in possession as the result of a fresh settlement by the co-sharer landlord who had right to do so u/s 22(2), Bihar Tenancy Act. The trial Court was apparently struck with the clear injustice to the plaintiffs because he says:

Ordinarily it seems peculiar that the raiyat should not be held bound by the liabilities created by himself. It is really peculiar that the purchase of khata No. 3 by defendant 6 which would have seemed in the beginning a curse for defendant 1 should ultimately prove to be more than a blessing for defendant 1 because he is free from the sale made by him in respect of the suit land. In the present case, however, the purchase of khata No. 3 by defendant 6, had the effect of making the purchase of the plaintiffs null and void and inoperative.

The appellate Court took the view that even if it was found that the effect of the rent sale and the continuance of possession of the plaintiffs with the consent of the auction purchaser can only be regarded as a fresh settlement by the co-sharer landlord the Revenue Officer had no jurisdiction to restore such lands in view of the provision of Section 6(1)(d) and Section 3(1), Restoration Act. But he also held that it appeared to him to be doubtful whether the tenant-defendants having sold away the holding or a portion thereof to a third person could ask for restoration of the same when it was purchased by the landlord. He goes on to observe:

The raiyats under the kebala (exhibit 2) sold away the holding and so it cannot be said that it was their holding which was sold. It was the holding of the plaintiff-appellants which was sold in the execution sale and they had no right to contest the sale as they had not paid the landlord''s fees. They, however, compromised with the landlord and continued in possession as before. It is not, therefore, understood how the right of the tenant-respondents to get back the property which they had sold away for consideration revived again since whatever right they had in the disputed land was extinguished by the sale under the kebala. In view of the fact that they sold away the disputed lands to the plaintiffs, they had no right to come u/s 3(1) of the Act and the order of the Revenue Officer was, therefore, without jurisdiction.

Accordingly he allowed the appeal, set aside the decision of the learned Munsif and decreed the suit by declaring that the plaintiffs had full right to the disputed land. Hence the second appeal to this Court. It appears from the narrative which we have given above from the judgment of the learned Subordinate Judge that in one part of the judgment he thought that the entire holding of the tenants had been sold by them under the kebala to the plaintiffs and in another part of the judgment he says that a portion of the holding had been sold to the plaintiffs. The truth of the matter is that only a part of the holding recorded in khata No. 3 has been sold to the plaintiffs; this was clearly stated by the learned Judge in the opening lines of his judgment. We must, therefore, proceed upon the footing that only a portion of the holding had been sold to the plaintiffs.

Section 12, Restoration Act, clearly states the effect of the restoration to the raiyat of his land, namely, that any simple mortgage or charge created by the landlord in respect of such land or any portion thereof shall not be binding on the raiyat, and further that all such rights as the raiyat had in respect of the said land and the incidents thereof before its sale shall revive. In the present case, Sub-clause (a) of Section 12 has no application because the settlement of the land in dispute with the plaintiffs by the landlord does not amount to a simple mortgage or a charge created by the landlord. The question for determination is whether the raiyat when he is restored to the land is free to repudiate the previous transactions which are binding on him. It is argued on behalf of the appellant that when the landlord put up the holding to sale, the rights of the plaintiffs disappeared as their transfer was not recognised by the landlord, and, therefore, on the restoration to the tenants, the land-came back in their possession free from the title which they had created in favour of the plaintiffs. There is a fallacy in this argument. While it is true that the title of the plaintiffs not having been recognised by the landlord was not capable of enforcement against the landlord auction-purchaser, but the transaction of sale was binding between the raiyat and the plaintiffs When the lands were restored to the raiyats, the rights which they had in respect of the lands before the transfer revived, necessarily resulting in the revival of the title which they had created in favour of the plaintiffs. The plaintiffs can also bring to their aid the provisions of Section 6(1)(d) of the Act. If there is a bona fide settlement by the landlord that settlement cannot be avoided by the tenants. If that settlement is of the whole of the holding, the holding cannot be restored to the tenant. But if the settlement is of a portion of the holding, then the tenant will get possession of only that part of the holding which has not been settled with a third person. It is to be observed further that the Preamble of the Act itself shows that the object of the Act is to provide for restoration to the tenants of lands which were sold for arrears of rent on account of the liability of the raiyats to pay such arrears by reason of unprecedented fall of price as between certain dates; the object of the Act is not to deprive the rights which had been bona fide created by the tenant himself in favour of a third person. As observed already, the title created by the landlord bona fide is kept in tact and only a simple mortgage or charge created by the landlord shall not be binding on the raiyat.

But it was argued that as the rent reduction proceedings were completed with notice to the plaintiffs, the order of the officer is binding upon them. The answer to this is that the Collector has no jurisdiction to decide the question of title which has bona fide passed to the plaintiffs by a sale by the raiyat himself. The order directing the raiyat to be restored to possession can be challenged in the civil Court as ultra vires of the Act. We have shown that the Act has no application to such a case. Again, in the present case, the matter may be looked at from another point of view. It has been found as a fact by the appellate Court that defendant 6 as a result of a purchase of the entire holding in execution of a rent decree had the right to remain in possession, and as he settled the land with the plaintiffs which he was entitled to do u/s 22(2), Bihar Tenancy Act, the plaintiffs acquired a valid title bona, fide on paying salami to the cosharer landlord; it has also been found that the other cosharer landlords also accepted this position. The raiyat, therefore, has no right to be restored to possession of this part of the land which had been settled with the plaintiffs by the cosharer landlord. The order of the Collector under the Restoration Act must be ignored with regard to this portion of the land. It is a satisfaction to us that the interpretation of the Act is in accordance with the plainest rules of justice, equity and good conscience, otherwise, as the learned Munsif himself felt it, the restoration would prove to be more than a blessing for defendant las he would be free from the sale which he deliberately made on receiving full consideration in respect of the suit land. It is to be observed that only defendant 1 has contested the suit. His cosharers, defendants 2, 3, 4 and 5, have not joined in this iniquitous defence. In the result, the appeal is dismissed with costs payable to plaintiffs-respondents.