P L D 1952 Dacca 76 (PLP)

Umatara Gupta v. Uma Charan Sen 3 C L J 52, ref. Nirmal Chandra Nandi for Rohini Benode Rakshit, for Appellant. Bhupendra T(ath Roy Choudhury for Imam Hossain Choudhury, for Respondents. ISPAHANI, J.‑

The appellant filed the suit out of which this appeal arises for khas possession of the land described in schedule 4 to the plaint on declaration of his title thereto and for mesne profits for 1347 to 1349 B. S. The lands in suit appertain to Noabad Taluk No, 2662 and Rajani Kanta Choudhury was the proprietor. He defaulted payment of revenue and the taluk was sold in auction in a revenue sale under the provisions of Act XI of 1859 and Act VII of 1868 and auction purchased by Monorama Devi in the benami of her brother Jamini Ranjan Chakravarty, who subsequently executed a deed of release in her favour. The plaintiff claimed title by virtue of purchase from Monorama Devi on the ground that his vendor had sold the taluk to him with power to avoid incumbrances. After his purchase, the plaintiff went to take possession of the lands but was resisted by the defendants. He alleged that ‑defendants' had no protected interest in the lands and were liable to be evicted. The defendants Nos. 2, 3 to 5 and defendant No. 6 filed separate written statements and denied the plaintiff's alleged title to the taluk in suit and contended that he was the benamdar of the defaulting proprietor Rajani Kanta Choudhury. Out of the suit land defendant No 6 claimed protection with respect to one kani two karas of land on the ground that he being an occupancy raiyat and having his homestead and tank thereon, was not liable to be evicted. Defendants Nos. 3, 4 and 5 claimed protection in respect to R. S. Plots Nos. 3490 and 3473 and defendant No. 2 in, respect to R. S. Plot No. 2774. Their defence was that they were settled raiyats of the village ‑having occupancy right in the plots claimed by them and plaintiff's prayer for khas possession against them was not maintainable. The learned Munsif decreed the suit in a modified form on contest against defendants Nos. 2 to 6 and ex parte against defendant No.

1. The plaintiff's title to the disputed land was declared and he was ordered to get khas possession of Plots Nos. 3207, 3467, 3190, 2774, 4935 and 4933 by evicting defendants Nos. 1, 2 and

6. The plaintiff's claim for khas possession with respect to Plots Nos. 3490 and 3473 was dismissed. The plaintiff was ordered to get mesne profits of Rs. 24 from defendant No. 2 and Rs. 42 from defendant No.

1. He also gave other directions regarding costs against various defendants. Three separate appeals were filed from that decision being Title Appeal No. 105 of 1943 by defendant No.

6. Title Appeal No. 112 of 1943 by defendant No. 2 and Title Appeal No. 140 of 1943 by the plaintiff. Mr. G. B. Synge, District Judge, Chittagong dismissed Title Appeals Nos. 105 and 140 of 1943 and allowed Title Appeal No. 112 of 1943 filed by defendant No.

2. He held that the purchaser having obtained valid title as from the 29th June, 1935, did so subject to valid and annullable incumbrances created up to the date of the sale and defendant No. 2 was a raiyat with occupancy right in Plot No. 2774 and, therefore, could not be evicted. The plain tiff has come before this Court against the decision of the learned District judge in that Title Appeal. It will be relevant to mention certain dates. The 29th June, 1935, was fixed as the last date for payment of revenue by the defaulting proprietor. Defendant No. 2 claimed protec tion in respect of R. S. Plot No. 2774 by virtue of a patta (Exhibit C) executed in his favour by the defaulting proprie tor Rajani Kanta Choudhury on the 26th Asar ; 1297, M. E. corresponding to the 11th July, 1935. The auction sale took place on the 22nd November, 1935, and the sale certificate (Exhibit 5), dated the 7th April, 1936, shows that the auction purchase by Manorama Devi, the vendor of the appellant, became operative from the 29th June, 1935, which was the last date fixed for payment of revenue by the defaulting proprietor. Mr. Nandi, appearing for the appellant, has argued that having regard to the facts that the auction purchaser's title to the Noabad taluk accrued before the execution of the patta (Exhibit C) by the defaulting proprietor, the lower appellate Court erred in law in holding that the appellant would be bound by the same and that the power of the defaulting proprietor to grant a lease did not terminate after the latest date for payment of revenue. The question for determination is whether the patta (Exhibit C) executed after the latest date of payment fixed for payment of revenue by the defaulting proprietor but before the revenue sale would be binding on the appellant whose title to the property vested from the 29th June, 1935, though the auction sale was held on the 22nd November, 1935. According to section 28 of the Bengal Land Revenue Sales Act, 1859, immediately upon a sale becoming final and conclusive the Collector or other Officer shall give to the purchaser a certificate of title in the form prescribed in Schedule A annexed to the Act and the said certificate shall be deemed in any Court of justice sufficient evidence of the title to the estate or share of an estate sold being vested in the person or persons named from the date specified. The sale certificate contains the 29th June, 1935, as the date from which the auction purchaser was vested with the title of the pro perties sold in the revenue sale. In the case of Umatara Gupta v. Uma Charan Sen 3 C L J 52, it was held that when an estate is sold for arrears of revenue, the mortgage of a share of such estate executed between the date of default and the date of sale is invalid as against the purchaser, but the mortgagee is entitled to a charge on the surplus sale‑proceeds after payment of the arrears of revenue. In the reported case, the Court was concerned with the mortgage of a share of an estate executed between the date of default and the date of sale while, in the present case, a patta was granted by the defaulting proprietor between the date of default and the date of sale. This being the only difference it seems to me that the principle enunciated would also govern the facts of the present case. In the case of Rai Surendra Narayan Sinha Bahadur v. Pankoj Kumar Das 50 C W N 96, Hender'son J. held that the title of the purchaser of an estate at a revenue sale takes effect from the date when default is made and a lease granted by a proprietor at a time when he was in default but no sale for arrears of revenue had then been held, is not binding on the purchaser at a revenue sale subsequently held for such arrears. I entirely agree with the said decision. It is not compatible with reason to say that when the appellant's title is ante‑dated he would be bound by a transfer made at a subsequent date by somebody else. As observed by Henderson J., it is easy to find out when an estate is in arrears and the effect of this provision of the law is that persons who deal with a defaulter do so at their own risk. The learned District judge referred to section 7 of the Act forbidding the raiyats and under‑tenants to pay to the defaul ting proprietor any rent which falls due after the day fixed for the last date of payment, on pain of not being entitled to credit in their accounts. with the purchaser for any sums so paid. He observes that by that provision the tenants are protected by means of the notice from paying rent twice over. His view seems to be that the provision does not forbid the defaulting proprie tor from transferring the property after the day fixed for the last date of payment but before the revenue sale is held. He further observes that there was no attachment of the estate and there was nothing in the Act to indicate that the ante‑dating of the purchaser's title was meant to operate against the tenant. These observations are founded on a fallacy because if the title of the purchaser of an estate at a revenue sale as in the present case takes effect from the date when default is made he cannot A deal with the estate in any way between the date of default and the date of sale. He has farther found that the defaulting proprietor was empowered to grant a valid lease to a tenant so long as there was good faith on the side of the tenant. The question of good faith was not raised in the pleadings and he was, therefore, not justified in making out a new case. The last argument advanced by Mr. Nandi is that the Court of appeal has erred in law in not holding that defendant, No. 2 acquired no raiyati interest much less a raiyati with occupancy right in plot No. 2774 on the basis of Exhibit C. As the first argument has been found in favour of the appellant, it is not necessary to give a decision on this point. The result, therefore, is that this appeal is allowed with costs of this Court and of the lower appellate Court. The judgment and decree of the lower appellate Court are set aside and the order of the trial Court in respect of Plot No. 2774 is restored. A. H. Appeal allowed.