P L D 1950 Dacca 13 (PLP)

By the default of proprietors their interest was wiped out by the revenue sale. By their default to pay the arrears of revenue at the revenue sale, the purchaser got the right, title and interest aril of defaulters free from all encumbrances. 44 Cal. 412, (1915) 24 C L J 60 and (1914) 24 C L J 62 relied on. Jitendra Kumar Sen Gupta and Sabita Ranjan. Pal for Appellants. Hamendra Kumar Dass and Tarapada Kumar Pal, for Respondents. AMIN AHMED, J.‑

This appeal by the defendants Nos. 29 and 30 arises out of a suit for recovery of possession on declaration of the plaintiffs title there to The suit relates to 5 plots of lands but the plaintiff claims only plots Nos. 1, 3, 4 and 5 and no plot No.

2. The plaintiff's case inter alia is that the suit lands appertain. to taluk No. 25059 /334. In 1924 a separate account No. 9 was opened by one Abdullah and others. On the 24th September, 1929, on account of non‑payment of arrears of Revenue, under the Assam Lard and Revenue Regulation 1886, the separate account was sold and it was purchased by the defendant No.

28. The sale was confirmed on the 3rd December 1929 and, on the 28th August 1931, he was given possession through Court. On the 22nd October 1938, the plaintiff purchased the said separate account from the defendant No. 28 with arrears of means profits. As the defendants have kept the plaintiff and his vendors out of possession, the present suit has been instituted. The suit is mainly contested by the defendants Nos. 29 and

30. Their case inter alia is that the suit lands appertain to taluk 25060/335. One Najiba Banu was originally the owner and was in possession of the said disputed plots Nos. 1, 3, 4 and 5 as appertaining to taluk No. 25060/335. In the year 1838 the suit lands were settlement of from Najiba Banu by one Bhikai alias Muhammad Safi, the maternal grand‑father of Abdullah ‑who is said to have opened the separate account No.

9. In the year 1866, the interest of Najiba devolved on one Sultan Khan and in the year 1890 Sultan Khan opened a separate account No. 1 in respect of the disputed land as appertaining to taluk No. 250601335, so according to these defendants in all the transactions the suit lands have been treated as appertaining to taluk 25060/335 and in separate account No. 1 when it came to be opened; that if the that papers show that the lands appertain to taluk No. 25059/334 they must be incorrect and that separate account No. 9 was fraudulently and collusively opened. Both the Courts below held that the suit land appertained to taluk No. 25059/334 separate account No. 9 standing in the name of Abdullah and others that the separate account No. 9 has not fraudulently and collusively opened, that Abdullah or his prede cessors were not in possession of plots 1, 3, 4 and 5 and that plot No. 2 was in possession of Abdullah and others who opened the separate account No.

9. Mr. Seri Gupta appearing for the appellants has argued that inasmuch as the plots Nos. 1, 3, 4 and 5 were in adverse possession of the defendants‑appellants predecessors since 1838, in 1924 when separate account was opened by Abdullah and others the latter had no proprietory interest or title, so, under section 65 of the Assam Land and Revenue Regulation.. 1826 Abdullah and others should not have been allowed by the Deputy Commissioner to open a separate account and, therefore, opening a separate account at the instance of a person without title followed by a Revenue Sale of such separate account cannot affect the interest of the defendants‑appellants, who acquired good and valid title on account of adverse possession for more than 12 years. Mr. Seri Gupta's answer as to not raising any objection at the time the notice under section 65 in respect of .the opening of a separate account was served is that as his clients were not recorded proprietors, they did not raise any objection as the objection could not be heard or gone into by the Deputy Commissioner under section

65. This may be so. But it was open to his clients to file a suit under Article 14 of the Limitation Act against the order of the Deputy Commissioner opening a separate account within one year of the said order and that was not done. But Mr. Sen Gupta points out that as Abdullah and others who opened the separate account No. 9 had no title the purchaser of the separate account at the revenue sale has no title either. This argument is not tenable for more than one reason. Although the defendants appellants were not recorded proprietors, on their own showing they were possession of the plots in question. So, according to section 63 of the Assam Land and Revenue Regulation they were bound to pay the Government revenue. Section 63 of the said Regulation runs: "Land Revenue payable in respect of any estate shall be due jointly and severally from all persons who have in possession of the estate or any part of it during any portion of the agricultural year in respect of which the revenue is payable." Section 67 of the said Regulation runs "Land Revenue not paid on the date when it fell due shall be deemed‑ to be an arrear and every person liable for it shall be deemed to be a defaulter." According to t‑his section the defendants being in possession were defaulters, Further, Mr. Seri Gupta claims for his clients more than possession that is the by adverse possession long before the date of the revenue sale: The effect of this adverse possession of the defen dants‑appellants was to constitute them joint proprietors of the taluk in question ; with the acquisition of that right they also incurred the corresponding liability namely, to pay Government revenue. They were, therefore, in the position of defaulting pro prietors whose interest was wiped out by the revenue sale. So by their default to pas‑ the arrears of revenue at the revenue sale, the purchaser got the right, title and interest of the defaulting defendants‑appellants free from all encumbrances, Vide the case of Mahim Chandra Chaudhury v. Peary Lal Das, report. 44 Cal.,

412. Section 70 of the Assam Land and Revenue Regulation runs:‑ "When an arrear has accrued in respect of a permanently settled estate or of an estate in which the settlement holder has a permanent, heriditable and transferable able right of use and occupancy, the Deputy Commissioner may sell the estate by auction ; provided that (2)" if the arrear has accrued on Separate account opened under section 65, only the shares or lands comprised in that account shall in the first place be put up to sale ; and if the highest bid does not rover the arrear the Deputy Commissioner shall stop the sale and direct that the entire estate shall be put up for sale at a future date, be specified by and the entire estate shall be put up accordingly and sold,... Section 71 of the said Regulation runs thus:‑--"Property sold under section 70 shall be sold free of all encumbrances previously created thereon by any other person than the purchaser ..". Vide the case of Aftar Ali v. Brojeddra Kishore Ray Chaudhury reported in (1915), 24 C. L. J. 60, and also the case of Jitendra Kumar Pal Chaudhury v. Vahendra Chandka Sharma reported in (1914), 24 C. L. J. 62., In the result this appeal is dismissed with costs. AKRAM, C.J.‑

I agree. K.M.A . Appeal dismissed.