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Haji Mallha Khan and ors. Vs. Thakur Gulab Singh - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in161Ind.Cas.446
AppellantHaji Mallha Khan and ors.
RespondentThakur Gulab Singh
Excerpt:
u.p. land revenue act (iii of 1901), section 141 - whether applies to section 221, agra tenancy act (iii of 1926). - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - learned counsel failed to produce any ruling to show that any court has ever held that section 141, land revenue act, can apply to section 221, tenancy act......decree for arrears of revenue paid by him he has a prior charge within the wording of section 141, land revenue act, which states as follows:in the case of every mahal the revenue assessed thereon shall be the first charge on the entire mahal, and on the rents, profits or pioduce thereof. the rents, profits or produce of a mahal shall not be applied in satisfaction of a decree or order of any civil court until all arrears of revenue due in respect of the mahal have been paid.2. the argument for the appellant is that under this section the revenue is a first charge on the entire mahal and as he got a decree for arrears of revenue against the co-sharer and obtained possession of the share in execution sale of that decree therefore he can hold up his charge against the present decree-holder.....
Judgment:

1. This is a Letters Patent Appeal by three persons, but learned Counsel stated to us that he addressed us only in regard to appellant No. 1 who was the lambardar. The appellant claims that as lambardar he brought a suit against Musammat Ram Piari, the appellant, for arrears of revenue which he had paid on her behalf and obtained a decree under Section 221, Agra Tenancy Act of 1926. He put her share up to auction and on May 25, 1933, he purchased one-tenth share in the property in suit and obtained possession. The opposite party is a decree-holder who obtained a simple mortgage decree on November 27, 1931, against the shares of Chandan Singh and his wife Musammat Ram Piari, and a final decree on November 5, 1932, and on January 21, 1933, he applied for execution of his final decree and the decree was sent to the Collector for sale of the property. The appellant before us made an objection to the effect that owing to his having purchased the one-tenth share on account of a decree for arrears of revenue paid by him he has a prior charge within the wording of Section 141, Land Revenue Act, which states as follows:

In the case of every mahal the revenue assessed thereon shall be the first charge on the entire mahal, and on the rents, profits or pioduce thereof. The rents, profits or produce of a mahal shall not be applied in satisfaction of a decree or order of any Civil Court until all arrears of revenue due in respect of the mahal have been paid.

2. The argument for the appellant is that under this section the revenue is a first charge on the entire mahal and as he got a decree for arrears of revenue against the co-sharer and obtained possession of the share in execution sale of that decree therefore he can hold up his charge against the present decree-holder on the mortgage decree although in fact the mortgage decree was prior to the decree for arrears of land revenue. The question is whether Section 141, Land Revenue Act is intended to apply to a decree-holder under Section 221, Agra Tenancy Act. If the lambardar had desired to proceed under the Land Revenue Act, he could have applied under Section 181 of that Act to the Collector to recover the amount which he had paid 'as if it were an arrear of revenue payable to Government.' In that case the Collector could have taken any of the proceedings laid down in Section 146. But if the Collector had desired to sell the share he would have had to obtain sanction from the Board of Revenue under Section 160. The procedure adopted by the lambardar has resulted in the sale of the share without such sanction from the Board of Revenue. We are of opinion that the language of Section 184 shows that the right of the lambardar is not the same as the right of Government and for this reason the words used are 'as if it were an arrear of revenue payable to Government.' It is only in the case of proceedings for an arrear of revenue taken under the Land Revenue Act that Section 141, Land Revenue Act will apply.

3. There 'is nothing whatever in the Land Revenue Act or in the Tenancy Act to indicate that Section 141, Land Revenue Act, can apply to Section 221, Tenancy Act. Learned Counsel failed to produce any ruling to show that any Court has ever held that Section 141, Land Revenue Act, can apply to Section 221, Tenancy Act. We are of opinion that the first charge of the Government laid down in Section 141, Land Revenue Act, is. a first charge of the revenue when the revenue is payable to Government or when the Collector takes proceedings under Section 184 of that Act on behalf of a lambardar. We consider that the prior charge cannot be applied in the present case to the decree obtained by the lambardar under Section 221, Tenancy Act. That being so we consider that the judgment of the learned Single Judge of this Court is correct and we dismiss this Letters Patent Appeal with costs. We may add that we consider that the execution Court would exercise a proper discretion in the present case if it put to sale the other property and did not put to sale this one-tenth share except in case the other property proved insufficient.


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