P L D 1966 Dacca 253 (PLP)

ABDULLA, J.‑This revision case by the plaintiff arises out of the judgment and order passed by a Subordinate Judge of Mymensingh dismissing a suit under section 9 of the Specific Relief Act. The plaintiff alleged that he was a tenant under the East Bengal Mercantile Bank Limited, Jamalpur, in respect of the disputed premises, namely, a building measuring 58x20 cubits with verendahs on three sides within an area of 20 acre of land demised to the plaintiff by an amalnama wherein he had also erected three separate huts and let out to tenants at will. The plaintiff was living in the said premises and established his Homeopathic Dispensary therein. The said Bank became a Certificate Debtor with respect to its agricultural income‑tax and the premises were attached under the Public Demands Reco very Act, whereupon he had filed a claim case which was rejected. The plaintiff then filed a declaratory suit against the order of rejection of his claim, but eventually the sale having been set aside by the Member, Board of Revenue, the plaintiff with drew the suit but the sale having been restored by an order of this Court in Writ Petition No. 140 of 1958 the plaintiff filed another' suit which he withdrew, on legal advice, and filed the present suit under section 9 of the Specific Relief Act on an averment that he was dispossessed on 21‑3‑60 with regard to the said land and properties. The property was purchased by opposite‑party Mohammad Munsar Ali Sarkar on 10‑6‑57 who obtained a sale certificate Exh. B on 12‑3‑1960. The plaintiff‑petitioner alleged that the certificate showed the purchase of the building only and that be took delivery of possession under rule 95. of Order XXI of the Code of Civil Procedure on, 21‑3‑60 and forcibly ousted the petitioner, a bona fide tenant in occupation of the said land and properties from before the attachment of the house property although under the law he was entitled to take delivery of symbolical possession under rule 76 of the Second Schedule to the Public Demands Recovery Act. The plaint also reveals that police help was taken and the inmates of the house, including females, were ill‑treated, and the structures set up by the plain tiff himself were demolished and the movable properties of the petitioner seriously damaged. As such the plaintiff petitioner prayed for restoration of possession as he was dispossessed otherwise than in due course of law and without‑ his consent. The opposite‑party before us contested the suit and pleaded, inter alia, that the suit was not maintainable. The plaintiff had no right, title and interest and that the claim preferred by the plaintiff having been dismissed the suit was barred by the principles of res judicata. . The learned Subordinate Judge framed the following issues:‑ "(1) Was the plaintiff in possession of the suit land within six months next before the institution of the suit? (2) Whether the plaintiff is entitled to get recovery of possession under section 9 of the Specific Relief Act?. (3) Whether the plaintiff was dispossessed otherwise than in due course of law? (4) Whether the suit under section 9 is maintainable in law? (5) Is the plaintiff entitled to get any relief?" With regard to issue No. 1, the learned Subordinate Judge found that the plaintiff had been in possession of the suit pro perties within six months before the date of his dispossession and decided the issue in his favour. Learned Subordinate Judge discussed issues Nos. 2 to 4 together and found that the plaintiff having made a claim before the Certificate officer was bound by the decision of the Certificate‑officer. He further held that the decision of the Certificate‑officer might not be strictly within the provisions of law, but nevertheless, it was final subject to any adjudication in a properly framed suit to establish the right of the plaintiff. As such, the learned Subordinate Judge found that the plaintiff was not entitled to restoration of possession under section 9 of the Specific Relief Act as, according to him, the defendant‑opposite‑party took delivery of possession in due course of law. Mr. Rouf, who has appeared before us on behalf of the petitioner, has argued that possession of the said properties as taken by the opposite‑party was not authorised under any pro vision of law and, as such, it was not in due course of law. In support of his contention he has relied on the decision in the case of Muluk Patoon v. Bharat Chandra Das (12 C W N 694). Mr. Khondker, who has appeared for the opposite‑party before us, has argued that the delivery of possession was taken in a legal proceeding and it did not matter whether the provisions of the Act, under which it was taken, strictly applied or not and, in support of his contention, he has cited the cases of L. Moore v. Monoranjan Guha (12 C W N 696); Kamini Sundari Dasaya v. Sabed Sheikh (14CWN403); Haran Chandra Pal v. Madan Mohan Banikya (15CWN956) and Jogendra Chandra Das v. Birendra Lai Das Chaudhry (39 C W N 394). He has further contended that even if the learned Subordinate Judge had committed on error of law, this Court has got no jurisdiction, under section 115 of the Code of Civil Procedure, to interfere with the decision of the learned Subordinate Judge, for which he has cited the cases of Shama Charan Ghose v. Mohammad Ali (10 C L J 30) ; Rudrappa Bin Sankappa v. Narsingrao Ram. Chandra Heblikar (I L R 29 Bom. 213) and N. S. venkatagiri Ayyangar v. The Hindu Religious Endowments Board, Madras (53 C W N 458). Taking up the cases cited by Mr. Khondkar first, we find that is the first case (12 C W N 696) the dispossession was effected by an order of the Criminal Court in a proceeding under section 145 of the Code of Criminal Procedure between the parties themselves. It was urged before the Court that section 145 did not expressly authorise the Court to place the successful party in possession, but it was held that the practical result was the same. Section 188 of the Penal Code provided an affective sanction for the course taken by the Court and the result of an order favourable to one party is that his unsuccessful opponent was deprived of possession. Thereupon it was held that the dispossession in that case was in due course of law inasmuch as such a course was, in fact, authorised by law, although a wrong provision was invoked for a permissible course. It. was, therefore, held further that the plaintiff could not take resort to the provisions of section 9 of the Specific Relief Act. It will be observed that in this case both the parties were same in the two proceedings‑the earlier one under section 145 Cr. P. C. and the latter one under section 9 of the Specific Relief Act. Furthermore, it will also be seen that section 188 of the Penal Code gave a sanction to the course that was followed. The next case cited by Mr. Khondker was Kamini Sundri's case. In that case the plaintiffs, who were tenants on the land, had been dispossessed in execution of decree against their landlord for khas possession. Although the tenants were not bound by the decree against the landlord, it was held that the dispossession was not otherwise than in due course of law. It was further held that the remedy of the plaintiff was not' under section 9 of the Specific Relief Act but under the special provisions made in the Code of Civil Procedure. It was again held that it was open to the plaintiffs to bring a suit to establish their rights if they had any title as tenants and could claim to remain on the land. It will be remembered that it was a decree of a civil Court with regard to specific property and that the said Court had full jurisdiction to grant delivery of the specific property to the plaintiff. In fact, this was faithfully done. An aggrieved person, who was not a party to the suit, was provided with a remedy against his ouster by the Code itself. So far as the Certificate is concerned, his power is limited to the provisions of the special statute which gives him such power. It is not co‑extensive with the power of a civil Court. Under the Public Demands Recovery Act the Certificate‑officer is entitled to proceed only against the property" of the Certificate debtor. The power of a Certificate‑officer with regard to a property, which has been sold, is set out in rules 75 and 76 of the rules contained in the second Schedule to Public Demands Recovery Act. Rules 75 and 76 are as follows: "

75. Delivery of property in occupancy of certificate‑debtor:‑ "Where the immovable property sold is in the occupancy of the certificate‑debtor or of some person on his behalf, or of some person claiming under a title created by the certificate debtor subsequently to the service of the notice issued under section 7, and a certificate in respect thereof has been granted under rule 74; the Certificate‑officer shall, on the application of the purchaser, order delivery to be made by putting such purchaser, or any person whom he may appoint to receive delivery on his behalf, in possession of the property, and, if need be, by removing any person who refuses to vacate the same. "

76. Delivery of property in occupancy of tenant or other person "Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same, and a certificate in respect thereof has been granted under rule 74, the Certificate officer shall, on the application of the purchaser, order delivery to be made by axing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the certificate‑debtor has been transferred to the purchaser." It is clear from the above rules that the' Certificate‑officer has no jurisdiction to give khas possession of a premises sold in auction but occupied by a tenant. Therefore, if dispossession of a tenant is affected, it would not be a dispossession in due course of law. The opinion expressed in Kamini Sundri's case was reitera ted in Haran Chandra Pal's case where it was held that, the bargadars of a tenant being dispossessed from their land in execution of a decree against the tenant to which the bargadars were not parties, and which was obtained upon a false admission by the tenant himself, the dispossession was in due course of law within the meaning of section 9 of the Specific Relief Act. This case came to the High Court by way of a reference under section 113 of the Civil Procedure Code. We find from the letter of reference that the bargadars submitted by the delivery of possession and that was held by the referring, Court to amount to dispossession in due course of law. A reference was made to the earlier case, namely, Kamini Sundari's case. The Civil Court was authorised to give delivery of possession of the land in question against the tenant. In due execution of the decree validly given against the tenant, the bargadars were evicted. The last case cited by Mr. Khandker was Jogendra Chandra's case. It appears that in that case an order was made by the Criminal Court on the plaintiff Wader section 147(2) of the Criminal Procedure Code prohibiting him from interfering with the exercise by the defendant of the right to use plaintiff's land as a path way. It was held that the principles laid down in Moore's case applied to this case also and as such the plaintiff's suit under section 9 of the Specific Relief Act was held not to be main tainable. It was further held that the act of the defendant in passing over the land did not amount to dispossession within the meaning of section 9 of the Specific Relief Act. Thus, it will be apparent that the cases cited by Mr. Khondker either relate to dispossession in course of criminal proceedings between the parties themselves or cases of dispossession by order of the Civil Court. So far as criminal proceedings inter parties are concerned, we have no doubt that if any dis possession has resulted due to any such proceedings it has been in due course of law and the aggrieved party has his remedy under the provisions of the Code of Criminal Procedure or by way of regular suit. So far as the two civil cases are concerned, we have seen above that the impugned evictions were the result of a course that Civil Courts were empowered to take. The remedy of any person aggrieved thereby was provided in the Civil Procedure Code itself. Mr. Khondker has not been able to point out to a similar provision in the Public Demands Recovery Act. The power of the Certificate‑officer, as we have shown above, was a limited one. Any action taken beyond the pro visions of law would bring the dispossession resulting therefrom to a dispossession otherwise than in due course of law. In Muluk Patoon's case, which is a case applicable to the facts of this case, it was held that if the plaintiff was the tenant of the judgment‑debtor the proper method of asserting the rights of the decree‑holder against him was section 319 of the Civil Procedure Code. The plaintiff had been dispossessed by a course not authorised by law. No order under section 318 of the Code could be legally passed in the aforesaid case. Now, coming to the present case, we find that the plaintiff has produced prima facie evidence of his title as a tenant and the trial Court has positively found that he was in possession of the suit premises within six months from the date of instruction of the suit. Thus the plaintiff was entitled to a decree in this case. In a suit under section 9 of the Specific Relief Act, the trial Court will not adjudicate upon the title of the parties, on the assertion of the plaintiff that he is a bona fide tenant. The opposite‑party, in. his written statement, ha challenged the power of the agent of the certificate‑debtor Bank to give the property in lease to the plaintiff and has claimed that no legal lease‑hold right had been created by the said settle ment. The legality of the lease granted to the plaintiff will not be investigated in this suit. The further objection was that the claim of the plaintiff had been rejected by the Certificate officer and that, as such, the plaintiff was bound by the said order of rejection. The short answer to this is that the plaintiff was not bound by an order which could not be legally passed. We have seen the municipal receipts and the evidence in the case and we are satisfied that the plaintiff has made out a prima facie case as regards his possession of the premises as a tenant. Exh. A is the application by the plaintiff to the Certificate‑officer which has been termed as "claim" by the opposite‑party. We have gone through the said applica tion and found that the objection to the attachment was on the basis that the assessment for agricultural income‑tax (for which the certificates were issued) was later than the settlement with the plaintiff‑petitioner and as such could not be effective and it was pointed out in the said petition that the Bank, had other lands than the land settled with the petitioner. It appears from Exh. D, an order dated 18th/23rd September 1961, made by the Certificate‑officer that the basis of rejection of the claim of the plaintiff was the opinion of the Government Pleader, that the amalnama granted to the plaintiff conferred no title on him as it was unregistered, but that was a question which would only be decided in a properly framed title suit. The plaintiff was, prima facie, holding the property as a tenant and the Certificate‑officer had no authority to give possession of the said property to the auction‑purchaser. The Certificate officer was legally bound to proceed in accordance with the provision of rule 76 of the Public Demand Recovery Act. Thus the dispossession, in the present cases was not in due course of law to the Certificate‑officer was not authorised by law to give khas possession to the auction purchaser under the pro vision of the Public Demands Recovery Act in the light of the facts and circumstances of this case. So far as the second point raised by Mr. Khondker is con cerned, the facts and circumstances stated above reveal that the learned Subordinate Judge did not commit merely' an error of law but he refrained from exercising a jurisdiction vested in him by law. The cases cited by Mr. Khondker in this connection are not applicable to the facts of this case. We have no doubt that the powers given to us under section 115 of the Code of Civil Procedure entitle us to revise the order passed by the learned Subordinate Judge. For reasons stated above, we make the Rule absolute and set aside the judgment and decree of Subordinate Judge. We decree the plaintiff's suit with costs of the Court below. We make no order as to costs of this application. S. M. MURSHED, C. J.‑I agree; K. B. A. Suit decreed.