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Amulya Charan Misra Vs. Prankrishna Adhicary and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1938Cal531
AppellantAmulya Charan Misra
RespondentPrankrishna Adhicary and ors.
Cases ReferredChandra Benode Kundu v. Ala Bux Dewan
Excerpt:
- .....the defendant auction-purchaser.2. for the plaintiffs it was urged that the sale was not a proper rent sale but it was reduced to a money sale inasmuch as the tenants who represented the holding were not all impleaded as defendants. the plaintiffs relied on the provisions of section 146-a, bengal tenancy act. the facts in respect of that section are that one of the plaintiffs pran kristo adhikari purchased a portion of the occupancy holding in suit from another person who had purchased it from the original holders. the purchase of pran krishna was made after february 1929 when the amendments of the bengal tenancy act came into force. the transfer fee was duly realized from him by the registering officer and duly sent to the collector and the collector served a notice upon the landlord.....
Judgment:

1. These are eight appeals from the appellate decrees of the District Judge of Midnapur who affirmed the decrees of the Munsif of Tamluk. The facts are that within the estate of Mahisadol Raj which was under the Court of Wards an occupancy holding was held by Madhu and Bepin Bera. It was a large holding of over 8 acres containing 42 plots. They in course of time sold 30 plots to one or several of the 8 plaintiffs before us and 8 plots to other persons retaining 4 plots in their possession. On 15th September 1930, the Court of Wards acting for the landlords applied for a certificate for arrears of rent against the heirs of the old tenants Madhu and Bepin Bera. The certificate was signed by the Deputy Collector and in due course the holding was sold on 15th March 1932 and purchased by the appellant in this Court. The appellant was duly given possession by the Court. Thereafter the eight plaintiffs instituted their suits for declaration of their title and recovery of possession of the plots which they had purchased from Madhu and Bapin Bera. In deciding title of the plaintiffs the Courts had to decide what was the effect of the certificate sale in respect of the transfers in favour of the plaintiffs. It was urged for the appellant that the certificate sale was a sale for arrears of rent and as such the 'holding in arrears passed by the sale and the plaintiffs' purchases were of no avail against the defendant auction-purchaser.

2. For the plaintiffs it was urged that the sale was not a proper rent sale but it was reduced to a money sale inasmuch as the tenants who represented the holding were not all impleaded as defendants. The plaintiffs relied on the provisions of Section 146-A, Bengal Tenancy Act. The facts in respect of that section are that one of the plaintiffs Pran Kristo Adhikari purchased a portion of the occupancy holding in suit from another person who had purchased it from the original holders. The purchase of Pran Krishna was made after February 1929 when the amendments of the Bengal Tenancy Act came into force. The transfer fee was duly realized from him by the registering officer and duly sent to the Collector and the Collector served a notice upon the landlord on 31st May 1930. The certificate for arrears of rent was issued on 15th September 1930 more than three months after the receipt of the notice. Upon these facts the plaintiffs urged that the certificate sale was not a proper rent sale inasmuch as the entire body of co-sharer tenants were not made defendants. The entire body of co-sharer tenants is defined in Section 146.A. It is first stated that all co-sharer tenants of a holding shall be liable to the landlord jointly and severally and a decree for arrears of rent and the sale in execution of such a decree shall be valid against all co-tenants whether they have been made parties defendants to the suit or not and against the holding in the manner provided in Ch. 14, Bengal Tenancy Act if the defendants to the suit represented the entire body of co-sharer tenants in the holding. Then in Sub-section 3 the term 'entire body of co-sharer tenants' is denned. It is stated, the entire body of co-sharer tenants shall be deemed to be represented by the defendants if such defendants include four classes of tenants as enumerated thereafter. Now Pran Krishna Adhikari does come under the third of the four classes enumerated thereafter which refers to such co-sharer tenants who having purchased an interest in the holding have given notice of the purchase under Section 26-C.

3. It has been urged for the appellant on the authority of the case in Sashi Kanta Acharjee v. Lechoo Sheikh : AIR1936Cal30 that the four classes should be taken as disjunctive and if the defendants fulfil the conditions of any one of the classes they shall be taken to be representing the entire body of tenants. That was a decision by E. C. Mitter J. In our opinion certain sentences in that judgment are unhappily expressed as E. C. Mitter J. himself stated in a later decision in 1936 in Ayesha Khatun v. Md. Hossain Molla (1936) 41 CWN 85. On a plain reading of Sub-section 3 of Section 146-A it is clear that the entire body of cosharer tenants is to include the names of every one of the four classes and the landlord in order to get a proper rent decree must implead as defendants every cosharer tenant who comes under the description of any of the four classes. In other words, if any cosharer tenant comes under any of the four classes and he is not sued in the rent suit then the decree will not be a proper rent decree. In this view, we are of opinion that the Court below was right in holding that the certificate sale was not a rent sale within the meaning of Ch. 14, Ben. Ten. Act. It amounted to a money sale, that is to say, the auction purchaser purchased the right, title and interest of the defendants in the suit.

4. The next point taken is that the provisions of Section 26-A do not apply to the purchase by Pran Krishna Adhikari. As stated above, Pran Krishna purchased from some person who had purchased from Madhu and Bepin Bera. The vendor of Pran Krishna was not recognized by the land-lords. It is urged that as Pran Krishna purchased from a person who was not recognized by the landlord his purchase did not comply with the provisions of Section 26-A which are to apply to transfers of holdings or portions of holdings of occupancy raiyats and the occupancy rights therein. It is urged that Pran Krishna's vendor was not an occupancy raiyat and the right which he had was not an occupancy right inasmuch as his possession was not recognized by the land, lord. The reply is that even before the amendments of 1928, the purchaser of a portion of the holding of an occupancy raiyat was not without rights. Having purchased a portion of the holding of an occupancy raiyat, the purchaser had a good title against the whole world excepting only the landlord. But even as regards the landlord he had certain rights. It was held in the Full Bench case in Dayamayi v. Ananda Mohan Roy (1915) 2 AIR Cal 242 that such a purchaser can apply to the Court to set aside a rent sale by deposit of the arrears of rent. It was held in the Special Bench case of Chandra Benode Kundu v. Ala Bux Dewan (1921) 8 AIR Cal 15 that such a purchaser would succeed in a suit to recover possession from the landlord. These were his rights before the amendments. But whether before or after the amendments his right would be complete as soon as the landlord acknowledged the transfer. In this case as stated above Pran Krishna purchased a portion of the holding on 21st March 1930. The transfer-fee was duly levied from him and the notice of the transfer was sent to the landlord on 31st May 1930. The Courts below have found that the landlord far from denying the rights of Pran Krishna or taking any other steps to repudiate him, in due course allowed him mutation. The certificate was not issued till more than three months after the receipt of the notice. On these facts the Courts below have drawn the conclusion that the land-lord accepted the transfer as a valid transfer of a portion of the holding of an occupancy raiyat. In our opinion the finding on this issue of the Court of Appeal below is correct.

5. The last point taken is that Pran Krishna might succeed in his suit to recover the portion which he purchased but the other seven plaintiffs had purchased before the amendments of 1928 and their purchases were not recognized by the landlord. The answer is that they are fighting an auction purchaser and as soon as they have shown that the decree in execution of which the sale was held was not a proper rent decree within Ch. 14, Ben. Ten. Act the auction-purchaser must be held to have purchased only the right, title and interest of the judgment-debtor and thereby the right, title and interest of all the plaintiffs were saved and they are entitled to decree against the auction-purchaser. Another point was taken that Pran Krishna after his purchase was acknowledged by the landlord, paid rent and accepted a rent receipt in the name of the old tenants. That, in our opinion, is a matter of no importance. The result is that the appeals are dismissed with costs, hearing-fee being assessed at four gold mohurs for all the appeals.


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