R.P. Mookerjee, J.
1. For a proper appreciation of the points in issue reference has to be made to certain proceedings which had taken place before the filing of the two suits out of which the present appeals arise.
2. The lands described in Khatian No. 238, situated in Mouza Harendranagore in Touzl No. 2858 in the district of 24-Pergannas belonged to the plaintiffs who will be hereafter described the Maitis as Chakdars. Certain persons who will be described hereafter as the Pramaniks were recorded as settled raiyats in respect of the said lands.
The interests recorded in the subordinate Khatians Nos. 239 to 243 were entered in the name of other persons. The Maitis filed a suit for the realization of the arrears of rent for 1345 to 1349 B.S. in respect of the 'raiyati' holding. The persons impleaded as defendants were the Pramaniks as also Muchiram Chand on the allegation that it was being claimed by the latter that he was a co-sharer. This suit was decreed 'ex parte'.
In execution of the decree, a sale proclamation was issued and the Maiti decree-holders purchased the same. It will have to be considered as to what was put up to sale in this execution case. After the issue of the sale certificate an application was filed by the Maitis under Section 167, Bengal Tenancy Act for annulling the encumbrance describing the same as the Korfa right held by Muchiram under the 'raiyati' on the strength of leases taken by Muchiram from others which had been sold in the rent sale.
According to the Maitis, the notice of annulment was duly served. According to Muchiram it was not. About this time Muchiram filed an application for setting aside the sale which had taken place in execution of the rent decree mentioned above. This application was ultimately dismissed.
3. On 27-6-1945, the Maitis filed Title Suit No. 53 of 1945 for the declaration of their title to the lands in suit describing the same as apperttaining to Khatians Nos. 238, 239 and 241, inclusive of the subordinate Khatians. It was alleged that the plaintiffs were entitled to 'khas' possession after eviction of defendant 1 from all the lands in suit if the former are dispossessed from the tenancy of the suit; otherwise for confirmation of possession.
4. The defence of Muchiram was that his interest had not been sold in execution of the rent decree obtained by the Maities as the subject matter of the claim was limited to the 'raiyati' holding only in which Muchiram had no subsisting interest.
It was further alleged that the notice in the rent suit had not been served upon him. It was further contended that the notice of annulment issued under Section 167, Bengal Tenancy Act had not been duly served upon him. His title, therefore, had not been affected either by the sale under the rent decree or after the filing of the petition under Section 167, Bengal Tenancy Act.
5. Another suit was filed on 7-12-1945, by Muchiram against the Maitis on the lines of the defence as entered by him in the suit filed by the Maitis that his title had not been affected by the proceedings referred to already and his Korfa right had not been affected by the so-called service of notice of annulment. He accordingly prayed for declaration of his title and for confirmation of possession, or in the alternative for recovery of possession if he is found to have been dispossessed.
6. These two suits were heard together and disposed of by one judgment of the learned Subordinate Judge on 14-7-1949. The claim of tile Maitis succeeded with the result that their suit was decreed and the suit by Muchiram was dismissed.
7. Two appeals have been taken to this Court by Muchiram. First Appeal No. 101 of 1950 arises out of Title Suit No. 53 of 1945, i.e., Maitis' suit. First Appeal No. 187 of 1949 arises out of Title Suit No. 99 of 1945, i.e., Muchiram's suit.
8. Two short questions arise for consideration. The learned Subordinate Judge has held that the claim by Muchiram in respect of the Korfa right is barred under Section 47, Civil P. C. This is wholly a misconceived proposition. Rent Suit No. 1910 of 1943 was by fee Maitis in respect of the 'raiyati1 holding. It did not include the subordinate tenancy held by Muchiram as a Korfa-tenant.
The description given in the plaint and as Incorporated in the decree leave no room for doubt about this fact. That Muchiram had been impleaded, though he was neither a proper nor a necessary party, will not in any way affect his right in the subordinate, tenancy. It is now admitted by both the parties that Muchiram had no interest in the 'raiyati' holding.
It is not appreciated why the learned Subordinate Judge proceeded on the footing that Muchiram was duty bound to appear in the rent suit and bring to the notice of the Court that he was an unnecessary party and that he was not interested in the subject matter of that suit. His failure to do so had the effect, according to the learned Subordinate Judge, of suffering an 'ex parte' decree to be passed against him with the result that 'his so-called Korfa right' was also extinguished in the process.
We cannot understand how this legal consequence can follow when the Korfa tenancy was not the subject matter of the suit. It is also not understood how Section 47, Civil P. C. can at all be attracted and be trotted out as a bar to the enforcement of the rights of Muchiram. Neither the provisions contained in Section 47, Civil P. C. nor the principles underlying the same can have any relevancy to the point now before us.
9. The rights, if any, which Muchiram had as Korfa tenant remained intact by the rent decree and the sale which followed. The sale proclamation and the writ for delivery of possession make it abundantly clear that the Korfa right was neither sold, nor was it the subject matter of the writ for delivery of possession thereafter.
10. Even if the objection raised by the Maitis under Section 47, Civil P. C. be not available, the next plea which was taken by them was under Section 167, Bengal Tenancy Act and requires a serious consideration.
11. If the notice under Section 167, Bengal Tenancy Act had been duly served the right which Muchiram had been annulled. The attack by Muchiram is of a two-fold character. It is stated that no such notice had at all been served, and even if served, it did not satisfy the provisions contained in Order 5, Rule 15 to 17, Civil P. C. That the notice had gone out cannot be disputed.
The only question for our consideration is whether the notice was duly served. When the notice was taken out for service, it was not servedon Muchiram personally. The relevant portion of the peon's report indicates that when he went to serve the notice at the address given, viz., Lat No. 15 Harendra Nagar, it was found by him that he was not present. It was reported to him by the witnesses who were present at the place that he was in his own house and they could not state when he would be coming.
It was further recorded that as regards Muchiram who was party No. 1 in the notice which was being served, his cultivator Rajani Nayek was intimated of the substance of the notice, but he refused to give any receipt for the service. Accordingly a copy of the notice was hung up from the roof of the hut of Muchiram. The notice was accordingly served.
12. The notice required to be served under Section 167, Bengal Tenancy Act has to be duly and properly served. Such service is to be clearly proved and it is obligatory on the purchaser who gave the notice annulling encumbrance to show that the notice had been served in the prescribed manner. Section 167, Bengal Tenancy Act is also required to be very strictly interpreted.
It is not the knowledge of the issue of such a notice or of the intention to annul the encumbrance which is required under this section to be proved but the service of the notice under the section. Though there are certain exceptions under which knowledge or intimation may some times be sufficient to impute notice, but when the case of a party is that such a notice was actually served, it has to be proved affirmatively. See in this connection 'Rasik Chandra v. Jagabandhu' : AIR1929Cal392 , 'Gopallal v. Amulya Kumar' : AIR1933Cal234 , and 'Jhabarmull v. Bhagatram' 51 Cal WN 189 (C).
13. We are, therefore, to examine whether the nature of the service, as disclosed in the peon's report referred to above satisfies the conditions laid down under Rule 17 of Order 5, Civil P. C. Rule 17 with the amendment as made by this Court runs as follows:
'Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the defendant is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person, upon whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed'.
14. If the defendant is absent from his residence when the service is sought to be effected on him, there is a duty cast upon the peon to ascertain whether there is any possibility of the person to come back to the place. In the present case Rajani Nayek whose name is mentioned in the peon's report transpires to be a 'bhagchasi' under Muchiram.
That fact by itself will not make him an agent empowered to accept service or a person otherwise empowered to receive a notice meant for Muchiram. It is not alleged that he was anadult male member of the family residing with him.
15. An attempt was made on behalf of Muchiram to show that the address as given in the notice, i.e., Lat No. 15 Harendra Nagar was not the place where Muchiram used to reside.
it was attempted to show that Muchiram's address was Lat No. 16 Tarangar, the address given in the 'pottas', Ex. A series, but the fact remains, as disclosed in the deposition of Muchiram in Miscellaneous Case No. 294 of 1944 during the proceedings for setting aside the sale (Ex. 1l) that his wife lived in Lat No. 15, and he also lived both in Lat No. 15 and in Lat No. 16. He had two places to reside in. That by itself will not, however, make the service of notice as described by the peon a sufficient compliance with the strict provisions contained in Rule 15 to 17 of Order 5, Civil P. C.
In the circumstances of this case, it was the duty of the peon to be more definite before he could submit a report of effective service of the notice. The serving peon ought to have used all due and reasonable diligence to find the defendant when he heard that he was in his house, meaning thereby in Lat Tarangar within a very short distance of the place where the notice was being served.
We must accordingly hold that the notice under Section 167, Bengal Tenancy Act had not been properly served. The result, therefore, was that the Korfa right of Muchiram under the subordinate Khatians had not been annulled. That right subsisted and it had not been affected by the rent sale which had taken place earlier.
16. The legal effect, therefore, is that the claim by the Maitis in their suit that their title subsists in the subordinate Khatians must fail. The claim put forward by Muchiram in his suit to the effect that his rights as a Korfa tenant in the subordinate Khatians had not been affected either by the rent sale by the Maitis or by the alleged service of notice under Section 167, Bengal Tenancy Act must be allowed.
17. The result, therefore, is that both the appeals are allowed with costs, hearing fee (one set) five gold mohurs. Title Suit No. 53 of 1945 stands dismissed and Title Suit No. 99 of 1945 is decreed. The parties will bear their own costs in the Lower Court.
18. I agree.