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Narayan Tanbaji MaraThe Vs. Rameshwar Guru Maheshpuri Gosami - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 565 of 1951
Judge
Reported in(1957)59BOMLR757
AppellantNarayan Tanbaji Marathe
RespondentRameshwar Guru Maheshpuri Gosami
DispositionAppeal dismissed
Excerpt:
.....is not right in his contention that what was actually sought by the landlord was to have a sale of both movables as well as of the holding of the tenants simultaneously. if there is no illegality in the sale proceedings and the sale held and confirmed on june 29, 1944, cannot be challenged as being void, then there is no dispute that the plaintiffs' suit would be clearly barred by limitation......sought by the landlord was to have a sale of both movables as well as of the holding of the tenants simultaneously.7. there is thus no contravention of the provision of section 58-b of the tenancy act. if there is no illegality in the sale proceedings and the sale held and confirmed on june 29, 1944, cannot be challenged as being void, then there is no dispute that the plaintiffs' suit would be clearly barred by limitation.8. the appeal, therefore, fails and must be dismissed with costs.
Judgment:

Gokhale, J.

1. In this second appeal the original plaintiffs challenge the dismissal of their suit by both the lower Courts. The plaintiffs were the tenants of field No. 23 situated in Mouza Koradi in the tahsil and district of Nagpur and that field had an area admeasuring 16.23 acres. The plaintiffs were absolute occupancy tenants and were in arrears in payment of rent to the extent of Its. 30-9-10. Their landlord was one Maheshpuri, the malguzar-lambardar of Mouza Koradi, and the present respondent Rameshpuri is the legal representative of the said Maheshpuri. As the tenants were in arrears, on August 10, 1942, the lambardar applied for recovering the arrears under the provisions of the C.P. Tenancy Act and, in pursuance of that application, the moveables of the tenants came to be attached. Subsequently part of the holding measuring five acres came to be sold on August 16, 1943, under Section 58-D of the C.P. Tenancy Act and the said sale was confirmed in favour of the present respondent on June 29, 1944. On June 27, 1947, the appellants filed the present suit challenging the sale proceedings as being beyond the jurisdiction of the Revenue Court and, therefore, void. The suit was, therefore, for a bare declaration that the revenue sale of the said land in favour of defendant No. 1 was null and void, though a temporary injunction pending suit was also prayed for.

2. Defendant No. 1, the present respondent No. 1, resisted the suit on the ground that lie had been placed in possession of the laud on July 8, 1946, by the Revenue Court, and therefore, the suit for a declaration alone was not maintainable. He also contended that the proceedings leading to the sale were perfectly legal, and even if there was any irregularity, the plaintiff's were bound to file a suit for setting it aside within one year of the confirmation of sale under Article 12 of the Limitation Act. He, therefore, challenged the plaintiffs' suit on the ground that it was beyond the period of limitation under Article 12 of the Limitation Act as the sale was confirmed on June 29, 1944, and the suit was filed on June 27, 1947. Both the lower Courts non-suited the plaintiffs on the ground that the sale was not vitiated by any irregularity and was binding on the plaintiffs. They also held that the plaintiffs' suit was barred by limitation under Article 12 of the Limitation Act.

3. Mr. Sidhaye, the learned advocate for the appellants, argues that the sale which is challenged by the plaintiffs is void as having contravened Section 58-B of the C.P. Tenancy Act. The relevant part of Sub-section (i) of this section provides that notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908), an arrear of rent due by an absolute occupancy or occupancy tenant may be realized by a Revenue Officer on an application made in that behalf by his landlord by any of the following processes, (a) by an attachment and sale of such movable property as is liable to be attached and sold under the provisions of the Central Provinces Land Revenue Act, 1917 (C.P. Act II of 1917), for the recovery of an arrear of land revenue, or (b) by sale of the holding or part thereof. Under Section 58-C(1), on receipt of an application under Sub-section (1) of Section 58-B, the Revenue Officer has to make an enquiry into the claim and record a finding, stating what amount, if any, is due, and he has to determine also the interest payable as well as the costs incurred by the landlord and the tenant is then required to pay the total amount thus determined within a certain period. Under Section 58-D(1), if this amount is not paid by the tenant, then the Revenue Officer shall, for the recovery of such amount, issue any of the processes provided for in Sub-section (1) of Section 58-B.

4. Now, the short contention of Mr. Sidhaye is that the sale of five acres of the land is void because the lambardar tried to recover the arrears simultaneously by both the processes and Mr. Shidhaye says that the word ' any ' as well as the word ' or ' occurring after Clause (a) in Section 58-B(1) would indicate that the arrears of rent due by the tenants could be realised by the Revenue Officer on the application of the landlord by ' only one ' of the two processes. Mr. Sidhaye contends that what the Revenue Officer did in this case was that he attached the movables, and also sold the five acres of the tenants' holding which, according to Mr. Sidhaye, cannot be done under Section 58-B. Now, both the lower Courts have come to the conclusion that a reasonable interpretation of this section would be that the landlord was not prevented from having recourse to both the remedies, and the Revenue Officer had the power to issue any of the processes indicated in the section, and the word ' any ' could not be treated as being synonymous with ' only one.' In support of his argument Mr. Sidhaye relied on two decisions of the Nagpur High Court. The first is Jagdeosingh v. Bisambar [1938] Nag. 41 in which it was held that the the word ' any ' in the expression 'any party thereto' in Section 23, Clause (a), of the Indian Specific Relief Act would indicate one out of a number of persons more than two, and that decision seems to have been followed in another decision of the Nagpur High Court in Premalabai v. Priya Kumari , where it was held that the words 'any debt or security' in Schedule 1, Article 12, of the Court-Fees Act, as amended in the Central Provinces would mean individual debts and individual securities and not aggregate of debts. Now, it is well settled that unless the Acts are in pari materia it is fallacious to take the construction which has been put upon one as controlling the construction of another (See Maxwell on the Interpretation of Statutes, p. 39). Besides the ruling of the Nagpur High Court in Premalabai v. Priya Kumari as to the interpretation of the expression ' any debt or security ' has been expressly dissented from by a Division Bench ruling of the Bombay High Court in In re Sunderji Laljee Khakhar : AIR1947Bom30 wherein Mr. Justice Kania, as he then was, pointed out that (p. 502) :

the word ' any ' can be used as meaning ' one ' as contrasted with ' more than one.' It is also used as covering several, i.e. meaning ' all.' A reference to Stroud's Judicial Dictionary shows that the word ' any' according to context can bear either meaning.

In my opinion, there is nothing either in the provisions of Section 58-B or 58-D of the C.P. Tenancy Act which would indicate that the Revenue Officer could not have issued both the processes mentioned in the section for realizing the arrears of rent due from the tenant. As the lower appellate Court has pointed out, the object of these sections seems to be to enable the Revenue Officer to realise the arrears due as quickly as possible and that object would be frustrated if the narrow construction sought to be put upon the section were accepted. I am not, therefore, prepared to accept the argument of Mr. Sidhaye that I should interpret the word ' any ' in Section 58-B of the Tenancy Act as meaning ' only one.' In my opinion, reading Section 58-B(1) and Section 58-D(I) together, the Revenue Officer has the power, on an application made by the landlord, to realize the arrears of rent and other dues from the tenant by issuing either one or the other or both the processes as he may deem proper.

5. The record also does not bear out Mr. Sidhaye's contention that the landlord had, in fact, applied and resorted to both the remedies simultaneously under Section 58-B. The lower appellate Court states in its judgment in para. No. 17 that the Revenue Officer had power to sell the holding as the money had not been realized by attachment and sale of movables. But it is not disputed that in this case so far as the movables are concerned no sale was held at all. If we look to the order sheet which is on record in Revenue Case No. 650/XI-14 of 1941-42 we find that on October 3, 1942, the landlord was present through his agent while the tenant was absent and warrant of attachment was ordered to issue and that seems to have been in respect of the movables though that also is not clear from the portion of the order sheet reproduced in the paper-book. Then on January 5, 1943, the relevant portion of the order reads as follows :

Proclamation of sale of movable is issued. Sale for the same is not held as notice and Suparatdar are not served. Applicant wants to sell the field. Sale proclamation of the holding be published by 25-1-1943. Sale will be held in Tahsil on 27-2-1943. P.F. in 3 days. Applicant to file copy of jamabandi.

6. It would, therefore, appear that when the order of sale was passed in respect of immovable property, no sale of the movables could be held as notices were not served. Therefore the landlord wanted to sell the holding and the Revenue Officer issued process accordingly. Mr. Sidhaye, therefore, is not right in his contention that what was actually sought by the landlord was to have a sale of both movables as well as of the holding of the tenants simultaneously.

7. There is thus no contravention of the provision of Section 58-B of the Tenancy Act. If there is no illegality in the sale proceedings and the sale held and confirmed on June 29, 1944, cannot be challenged as being void, then there is no dispute that the plaintiffs' suit would be clearly barred by limitation.

8. The appeal, therefore, fails and must be dismissed with costs.


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