PLD 1952 Dacca 92 (PLP)

S. Modaris Ali, for Petitioners. N. C. Chowdhury, for Opposite‑Parties. ISPAHANI, J.‑

This Rule was issued against the opposite parties to show cause why the order of the learned District Judge, Noakhali, dated the 3rd March, 1949, should not be set aside. The rule arises out of certain proceedings of a rather complicated nature and which went through various stages. For the purposes of this Rule, it will be sufficient to state that the opposite parties purchased the properties in question on the 11th January, 1937, in execution of a mortgage decree against the judgment‑debtors and took delivery of possession through Court on the 11th December, 1938. Thereafter, on the 19th November, 1942, the petitioners filed an application before the Deopara Debt Settlement Board under section 37‑A of the Bengal Agricultural Debtors Act for restoration of the properties covered by that decree. After going through various stages, the matter came up before the High Court in revision and the High Court directed that the Debt Settlement Board should decide whether the decree‑holders were in possession of the auction purchased‑properties, namely, 4.68 decimals of land out of which 0.49 decimal was the homestead of the judgment‑debtors in order that the judgment‑debtors might succeed. Thereafter, at a subsequent stage, the matter was referred by the learned District judge in revision to a Special Officer for a fresh enquiry. The Special Officer, by his order dated the 6th May, 1948, found that the land including the homestead was in possession of the decree‑holders after their purchase in the execution sale ; that the two kabalas relied on by the opposite parties to show chat some of the lands had been transferred to third parties were, in fact, benami transactions created after the 27th December, 1939, and that the vendees were not in possession. An appeal was preferred from that decision by the opposite parties and the Appellate Officer, by his order, dated the 22nd December; 1948, held that the application under section 37‑A of the Bengal Agricultural Debtors Act was not maintainable inasmuch as part of the property, that is the homestead auction‑purchased was still in possession of the judgment‑debtors though the other lands were in possession of the decree‑holders. From that decision the matter went in. revision before the District Judge who‑, by his order dated the 3rd March, 1949, upheld the decision of the learned Appellate Officer and dismissed the application of the judgment‑debtors before the Board. This Rule has been obtained by the judg ment‑debtors against that decision. Mr. Syed Modaris Ali, appearing for the petitioners, has challenged the order of the learned District judge on the ground that he has acted illegally inn the exercise of his jurisdic tion in not considering which party in law was in possession of the lands as well as the homestead of the judgment‑debtors. He has attacked the decision on the further ground that it merely repeats what was held by the learned Appellate Officer and that the learned District judge had not devoted his mind and attention to the real points involved in the case. Mr. Chowdhury, for the opposite parties, who are decree- holders auction‑purchasers, has argued that the learned District Judge in revision has come to a correct finding that because part of the property, namely, the homestead was in possession of the petitioners, there was no case for them to proceed under section 37‑A of the Act. It is, therefore, to be seen whether we are prepared to uphold the order in question passed by the learned District Judge. As already stated, the question of possession of the lands and the homestead was thoroughly gone into by the Special Officer who was directed to hold the enquiry. His finding was that not only the lands but also the homestead were not in possession of the petitioners. He found that the homestead was legally and symbolically, if not physically, in possession of the decree‑holders auction‑purchasers on the 20th December, 1939, and even at the time he held the enquiry. He, therefore, granted the petitioners relief under section 37‑A of the Act. That inquiry was held in pursuance to the direc tion given by the High Court which was of the effect that relief under the said section could only be given to the petitioners, if the question of possession was decided in their favour. Under clause (c) of subsection (1) of section 37‑A of the Bengal Agricultural Debtors Act, 1936, as amended a judgment‑debtor is entitled to relief if the property sold was in possession of the decree‑holder on or after the 20th December, 1939, or was alienated by the decree‑holder before that date in any manner otherwise than by sub‑clauses (i) to (iv) mentioned in that clause. Neither clause (c) nor the direction given by the High Court contemplates that possession of the decree‑holder should be actual possession. In our opinion, both the learned District judge and the learned Appellate Officer misconceived the position in not construing possession of the opposite parties according to law. The opposite parties are decree‑holders auction‑purchasers and as against the judgment‑debtors by implication of the law, they will be con strued to be in possession of the properties auction‑purchased by them including the homestead. The judgment‑debtors as has been found, are in possession of only the homestead but they are in the position of trespassers and in the eye of the law their possession is no possession so far as the decree -holders auction‑purchasers are concerned. This aspect of the case has not been considered by the learned District judge and the learned Appellate Officer and consequently we are unable to uphold their finding that because the opposite parties were not in actual possession of a portion of the property auction purchased by them namely, the homestead, the application under section 37‑A of the Act for restoration of the properties was not maintainable. That is not all. The learned Appellate Officer has remarked in his order that the Special Officer had strayed into the question of benami in regard to two kabalas executed by the opposite 'parties before the 20th December, 1939, transferring the holding in question along with some other to a third party. This question was also material for determination of the application of the petitioners because if, as has been found by the Special Officer, the two transfers were benami then obviously possession of the auction‑purchased properties would be with the opposite parties. The learned District Judge has not considered this aspect of the case at all and has merely upheld the decision of the learned Appellate Officer on other points. In view of what has been stated above, we are unable to uphold the order passed by the learned District Judge. In our opinion, he acted illegally in the exercise of his jurisdiction when passing that order. We, accordingly, make the rule absolute and set aside the order of the learned District judge and remand the case to him with the direction that he should set aside the order of the Appellate Officer and restore that of the Special Officer. We make no order as to costs. CHOWDHURY, J.--‑I agree. A.H. Rule made absolute