Ram Ranbijaya Prasad Singh vs Darsu Pandey

Manohar Lall, J.—This appeal has been referred to a Special Bench for a decision of the question whether the sale of a portion of a plot comprised in a holding contrary to the provision of the last proviso to S. 162A, Bihar Tenancy Act is void.

The facts are these. The appellant obtained a rent decree against the respondent judgment-debtor and put it into execution on 14-2-1941. On 21-4-1941 the Court decided that the true valuation of the holding sought to be sold, namely 19.62 acres, was Rs. 200 per acre and directed that this should be inserted in the sale proclamation which was issued. The date fixed for sale wag 21-7-1941. On 16-7-1941, the judgment-debtor put in an application for fixing the proper value of the land, but by an order dated 25-7-1941, the application of the judgment-debtor was rejected, the Court observing that the proper value of the land had already been fixed and the judgment-debtor should have appeared and objected when the notice was served upon him. On 28-7-1941 the sale was held of 1.66 acre out of survey plot 166 for Rs. 338-11-3. The decree-holder became the auction purchaser and his decree was thus satisfied. No objection having been raised the sale was confirmed on 28-8-1941. On 24-1-1944 the judgment-debtor put in an application for setting aside the sale upon the ground that the sale was of a portion of the plot and, therefore, against the clear provision of S. 162A, the last proviso. On behalf of the decree-holder it was objected that there was no evidence on the record to show that a portion of the plot had been sold and there was nothing in the Bihar Tenancy Act to show that a plot meant a survey plot. The learned Subordinate Judge, however, held:

In the absence of any definition for the word ''plot'' in the B.T. Act, the plot mentioned in S. 162A certainly means a survey plot. From the record of the execution case, I find that 1.66 acre of land out of plot No. 166 which consists of 2.07 acres of laud had been sold in the execution. There is, therefore, no doubt that a portion of the plot was sold in the execution. But in the proviso to S. 162-A B.T. Act, a Court has no jurisdiction to sell a portion of a plot. The Bale of a portion of plot No. 466 was, therefore, ultra vires and void

Hence the appeal to this Court.

We have looked into the original sale proclamation. It shows that a number of plots including plot 166 were advertised for sale. The area of plot 166 is given and on the back of the sale proclamation the entries show that the decretal amount is Rs. 330-15-0 and the execution costs are Rupees 7-12-3 making a total of Rs. 338-11-3. It also shows that 1''66 acres out of survey plot 166 has been knocked down in favour of the decree-holder for Rs. 338-11-3. This bid was accepted by the Court.

The proviso in question enacts "Nothing in this section shall be deemed to authorise the sale of a portion of a plot comprised in a holding". This is a clear direction of the statute that the Court is not authorised to sell a portion of a plot comprised in a holding and this goes to the jurisdiction of the Court which sells the property. This proviso seems to have been inserted as a matter of public policy so as to prevent excessive subdivision of plots, and is not merely for the benefit of the judgment-debtor, and, therefore, cannot be waived by him, and it is distinguishable from the provisions of S. 163A which are purely for the benefit of the Judgment-debtor and can be waived by him.

It is argued on behalf of the decree-holder that at the utmost this was an illegality committed by the executing Court which had jurisdiction to sell the property and that the violation of the express terms of S. 162A will not render the sale void. I have already, while delivering the judgment of the Special Bench in Misc. Appeal No. 105 of 1946, elaborately considered the question as to when a sale should be declared void or avoidable only where it is made against the provision of a statute. It is unnecessary to repeat those observations here. The terms of the section itself must be examined in order to find out whether the violation complained of affects the jurisdiction of the Court to sell the property or whether its non-compliance is no more than an irregularity or illegal exercise of jurisdiction. In the present case, the terms of the proviso are explicit as it distinctly takes away the jurisdiction of the Court to sell a portion of a plot. The words are clear: "Nothing in this section shall be deemed to authorise the sale of a portion of a plot comprised in a holding." It does not say that ''the Court shall not sell'' but it says the Court is not authorised to sell.

It was then argued on behalf of the decree-holder that there is nothing to show that the plot in the proviso means the survery plot and, therefore, it is suggested that the portion of plot 166 which has been sold may still be a complete plot in possession, of the judgment-debtor. But the answer to this argument is that this is a question of fact and has never been raised in the Courts below. Moreover, under S. 148 (b1), Bihar Tenancy Act, it is distinctly provided that where a suit is for the rent of land situated within an area for which a record-of-rights has been prepared and finally published, the plaint shall further contain a list of the survey plots comprised in the tenancy. Such a list is always given in rent suit plaints and was given in the plaint of the present suit. Such a list is also given in the execution petition and is given in the sale proclamation. It must be assumed in the absence of any evidence to the contrary that the statements in the execution petition and sale proclamation are correct and represent the true situation. It is true that the word "plot" and not "survery plot" is used in S. 162A, but it is for a very simple reason. There may be cases where no survey record of rights has been prepared in a particular area and it is to cover those cases that the word plot has been used in S. 162A. In my opinion, the Courts below have taken the correct view of the matter and the sale of a portion of plot must be held to be without jurisdiction and, therefore, null and void. It follows that no title has passed to the auction-purchaser, and the application to set aside the sale having been made within three years of the date of the sale is within time.

I would dismiss this appeal, but in the circumstances without costs.

Meredith, J.

I agree.

Shearer, J.

I agree.