1968 PLP 244 (SCMR)

CORNELIUS, C. J.-This appeal arises out of a suit brought by one Dr. Kudrat Ali under section 9 of the Specific Relief Act, to 'regain possession of a property from which he had been ejected within six months of the institution of the suit. The ejectment was carried out on the 21st March 1960 with the aid of a Police force, under the supervision of a Magistrate, in pursuance of certain proceedings under the Public Demands Recovery Act. The property in question consists of a building situated on 20 decimals of land, which belonged to, the East Bengal Merchantile Bank Ltd. The bank had become a certificate debtor in respect of arrears of agricultural income-tax, and the premises had been attached for recovery of the debt. Dr. Kudrat Ali had moved an objection before the Certificate Officer, in which the following averments were made. He had earlier taken a lease of the premises from the Bank, and these having been attached in the certificate case, an auction sale proclamation had been issued. He pleaded that the debt in respect of which the certificate had been issued related to a period long after the date of his lease, and therefore raised the plea that his leasehold right could not be attached for satisfaction of the said debt. He accordingly requested that his leasehold should be released. This , application was rejected by the Certificate Officer by an order dated the 19th March 1957, which sets out an opinion expressed by the Government Pleader to the effect that the Amalnama on which Dr. Kudrat Ali relied did not constitute a lease or an agreement to lease, that it was not a document of title and did not convey any right, title or interest in the premises to Dr. Kudrat Ali, and that the later could not maintain his claim unless he could produce a registered document of lease in support. After setting out this opinion, the Certificate Officer made the following order :- "So his prayer for exemption of the bolding from attachment cannot be allowed. Rejected proceed as usual." On the 10th June 1957, the property was put to auction and was bought by the present appellant, Muhammad Mansur Ali Sarkar for a sum in excess of Rs. 13,

000. There were certain proceedings in respect of the property by one Niranjan Dutt, who had offered to pay the Bank's debt so as to save the property and these continued until early 1959, when an order was made by the High Court, finally rejecting the application. In the meantime, Dr. Kudrat Ali had filed a suit in 1958 which he withdrew with permission to tile a fresh suit. After the final decision of Niranjan Pptt's application, Dr. Kudrat Ali filed another suit in 1959 which also he withdrew, but without permission to sue afresh. His dispossession by force took place, as has been staid already, on the 21st March 1960, and on the 10th September 1960, he filed the suit out of which the present appeal arises. The Subordinate Judge dismissed the suit taking the view that the Order of the Certificate Officer of the 19th March 1957, constituted a decision as to Dr. Kudrat Ali's claim of tenancy, and had become final since Dr. Kudrat Ali did not institute a suit to challenge the decision under Rule 43 of the Rules made under section 39 of the Public Demands Recovery Act. It was in pursuance of that decision that Dr. Kudrat Ali had been ejected, and therefore the suit under section 9 of the Specific Relief Act did not lie since possession had been taken from him in due course of law. On revision, the High Court set aside the judgment and decree of the trial Court and decreed the plaintiff's suit with costs of that Court. The view taken in the High Court was that Dr. Kudrat Ali had produced prima facie evidence of his leasehold title, namely, the Amalnama. The Certificate Officer's order of the 19th March 1957, proceeded purely on the opinion of the Government Pleader and could not be regarded as a decision that the Amalnama was ineffective in law to create tenancy since such a question could only be decided in a properly framed title suit. When the question of delivery of possession to the auction purchaser arose, the Certificate Officer should have acted in accordance with rule 76 of the aforesaid Rules. Since he did not do so, the dispossession was not made in due course of law, and therefore the suit was competently brought under section 9 of the Specific Relief Act, and as a prima facie title had been made out, it was bound to succeed. Special leave to appeal was granted to Muhammad Mansur Ali Sarkar to consider whether the High Court was right in its view that the Certificate Officer's order of the 19th March 1957, had not become conclusive as to Dr. Kudrat All's claim of tenancy by reason of his not having challenged that decision by suit under Rule

43. We have heard Mr. M. H. Khondkar in support of the appeal, and are satisfied that there is no ground for interference with the judgment and decree of the High Court. Rules 39 to 43 of the aforesaid Rules deal with the investiga tion of claims and objections. Under Rule 39, the Certificate Officer is empowered to investigate an objection to the attachment of any property in execution of a certificate "on the ground that such property is not liable to such attachment". In his objection to the Certificate Officer, Dr. Kudrat Ali had indeed set out a ground on which, in his submission, his leasehold was not liable to attachment for satisfaction of the debt due by the bank, and therefore, it could be said that the Certificate Officer was properly seized of the matter. Under Rule 41 an objection to the attach ment of a property succeeds where on the date of the attachment the property was not in the possession of the certificate debtor or some one in trust for him or "in the occupancy of a tenant or other person paying rent to him". Under Rule 42, the Certificate Officer is required to disallow the claim, if he is satisfied that on the date of attachment, the property was "in the possession of the certificate debtor as his own property and not on account of any other person or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him". If the Certificate Officer on looking at the Amalnama which provided for the payment of a rent of Rs. 65 per annum to the bank had come to the conclusion that the objection should be disallowed, on the ground that the property was in the possession of a person paying rent to the certificate debtor, the order of the 19th March 1957, would have been one made in accordance with the law and within the jurisdiction of the Certificate Officer. The order which was actually made proceeds on a ground which is ulterior to the requirements of Rule

42. That is, provided it is assumed that the Certificate Officer was adopting as his reasons the opinion expressed by the Government Pleader. The order does not in so many words say that the Certificate Officer had made the Government Pleader's reasons his own reasons for rejecting the objection. But even if it be so construed, it would seem that the decision that Dr. Kudrat Ali was not a tenant of the property was ultra vires of Rule 42, which specifies the powers exercisable by the Certificate Officer. The High Court was in our opinion right in thinking that the question involved being one of a leashold title, it could lot be decided in a summary manner by the Certificate Officer purporting to act under Rule

42. The order of the 19th March 1957, must therefore be regarded simpliciter as 'an order dis- allowing the objection of Dr. Kudrat Ali, and not one that attracted the provisions of Rule 43 in the sense that it conclusively decided a point of title subject only to decision in a suit to be brought by a person affected. The view taken by the High Court that the Certificate Officer when it came to delivery of possession to the auction purchaser three years after the making of the, order disallowing Dr. Kudrat Alt's objection should have acted in accordance with Rules 75 and 76 appears to us to be entirely correct. Rule 75 empowers the Certificate Officer to give delivery of property to the auction purchaser, if necessary by removing any person who refuses to Vacate such property only in a case where it is found to be "in the behalf of the certificate debtor or of some person on his oehalf, or of some person claiming under a title created by the certificate debtor subsequently to the service of the notice issued under section 7." Section 7 deals with a notice which the Lertificate Officer is required to serve upon the certificate debtor after a certificate has been issued in respect of the debt as a Public demand under section 4 of the Public Demands Recovery Act. It is plain that in this, case, the lease relied upon by Dr. Kudrat Ali was of a date prior to the issue of the certificate and the notice under section

7. Dr. Kudrat Ali was not claiming to hold the property on behalf of the certificate debtor, i.e. the Bank and it is clear that he was in possession at that time. Therefore, Rule 75 could not be relied upon by the Certificate officer for ejecting Dr. Kudrat Ali from the property. Under Rule 76, a different action is prescribed for the Certificate Officer in a case where the property is "in the occupancy of the tenant or other person entitled to occupy the same". Even if it be thought that the Amalnama on which Dr. Kudrat Ali relied did not create a tenancy in law, there can be no doubt that it at least constituted a licence giving him title to occupy the property. In such a case, the action prescribed is delivery in the symbolic form, that is to say by affixing a copy of the certificate of sale on the property, and making it known to the tenant that the interest of the certificate debtor has been transferred to the purchaser. It is quite clear that the proper course of action to be taken in 1960, for putting the auction purchaser in possession lay under Rule 76, and there fore, forcible ejectment of Dr. Kudrat Ali from the premises was not an action taken in due course of law. We are, therefore, satisfied that the view taken by the High Court that the suit was competent under section 9, Specific Relief Act, and that the facts established in the case were sufficient to justify the award of a decree to the plaintiff is entirely correct, and we accordingly dismiss this appeal with costs. Appeal dismissed.