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Haji HafizuddIn Ahmed on Death FayezuddIn Ahmed and ors. Vs. Natabar Chandra Saha - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1944Cal445
AppellantHaji HafizuddIn Ahmed on Death FayezuddIn Ahmed and ors.
RespondentNatabar Chandra Saha
Cases ReferredManindra Chandra Roy v. Gopi Ballav
Excerpt:
- .....did occupy the position of a landlord with regard to the holding and the sale in execution of the rent certificate should therefore operate as a rent sale. the questions are of some importance and as they seem to be uncovered by any previous authority it is necessary that we should examine them carefully. now, section 20 (1), public demands recovery act, lays down the general proposition that what passes at the certificate sale is the right, title and interest of the certificate-debtor. the purchaser simply steps into the shoes of the certificate-debtor and takes the property subject to all liabilities created upon it by the debtor, prior to the attachment. upon this general proposition an exception has been engrafted by sub-section (3) which runs as follows:notwithstanding anything.....
Judgment:

B.K. Mukherjea, J.

1. The material facts giving rise to this appeal are not in controversy and may be shortly stated as follows: A revenue paying estate bearing touzi no. 138/3 of the Jessore Colleetorate and belonging to one Sukesh Chandra Deb Roy was attached by the Collector for arrears of cesses under the provisions of Section 99, Bengal Cess Act. The notification under that section was published on 27th and 28th January 1935 and the Manager, Naldanga Estate was appointed receiver by the Collector, with powers to collect rents from different classes of tenants who held lands in that touzi. There was a raiyati holding carrying an annual rental of Rs. 15-ll-3p. recorded in R. S. Khatian 181 of Mouza Kapashati within touzi 138/3 in the name of one Baul Mandal. On a certificate issued on the requisition of the receiver appointed by the Collector as mentioned above, this holding was put up to sale on 30th Sep. tember 1936 and purchased by the plaintiff Hazi Mafizaddin Ahmad. The plaintiff took symbolical possession on 9th March 1937, but when he went to take actual possession he was resisted by the defendant who claimed an under-raiyati interest under the certificate debtor in respect of the lands in suit on the basis of a kabuliyat dated 9th June 1931. The plaintiff then served a notice upon the defendant under Section 167, Bengal Tenancy Act, with a view to annul the incumbrance which the latter purported to hold, but as the defendant still refused to vacate the lands the present suit was instituted. The plaintiff's contention in substance was that the sale being for arrears of rent due in respect of the holding the holding itself vested in the purchaser under Section 20 (3), Public Demands Recovery Act, 1913, with power to annul all incumbrances in the manner specified in that section. As the under raiyati interest alleged to be held by the defendant was annulled by proper notice under Section 167, Ben. Ten. Act, the latter had no further right to remain in possession of the land.

2. The suit was contested by the defendant who contended inter alia that the certificate in execution of which the property was sold having been obtained on the requisition of the Collectorate officer and not of the landlord of the holding, the provisions of Section 20 (s), Public Demands Recovery Act, were not attracted to the case and consequently the purchaser could only acquire the right, title and interest of the judgment-debtor. It was, therefore, argued that the plaintiff was not competent to evict the defendant on annulment of his under-raiyati interest which was a valid and subsisting interest at the date when the certificate was executed. The trial Court negatived the contention of the defendant and decreed the plaintiff's suit being of opinion that the plaintiff acquired the holding itself with powers to annul all incumbrances as laid down in Section 20 (3), Public Demands Recovery Act. On appeal the Subordinate Judge of Jes sore reversed the decision of the trial Judge and dismissed the plaintiff's suit. The original plaintiff died since then and his heirs have now come up on second appeal to this Court.

3. Mr. Gnha, appearing on behalf of the ap. pollants, has put forward a two-fold contention in support of the appeal. His first contention is that the Court of appeal below was wrong in holding that to bring a case within the purview of Section 20 (3), Public Demands Recovery Act, it is necessary, that the certificate in execution of which the sale took place must be obtained on the requisition of or in favour of the landlord, meaning thereby the sole landlord or the entire body of landlords in rospect of the holding. The question, it is said, has to be determined with reference to the provisions of the Public Demands Recovery Act which is a self-contained Act and in interpreting its sections the Court should not be influenced in any way by what is contained in the Bengal Tenancy Act.

4. The second point raised by Mr. Guha is that even if Section 20 (3), Public Demands Recovery Act, is confined to cases where the cer tificate-holder is the landlord in respect of the holding or the tenure, the Collector or the receiver in the present case did occupy the position of a landlord with regard to the holding and the sale in execution of the rent certificate should therefore operate as a rent sale. The questions are of some importance and as they seem to be uncovered by any previous authority it is necessary that we should examine them carefully. Now, Section 20 (1), Public Demands Recovery Act, lays down the general proposition that what passes at the certificate sale is the right, title and interest of the certificate-debtor. The purchaser simply steps into the shoes of the certificate-debtor and takes the property subject to all liabilities created upon it by the debtor, prior to the attachment. Upon this general proposition an exception has been engrafted by Sub-section (3) which runs as follows:

Notwithstanding anything contained in Sub-section (1) in areas in which Chap. 14, Ben. Ten. Act, 1885, is in force, where a tenure or holding is sold in execution of a certificate for arrears of rent due in respect thereof, the tenure or holding shall, subject to the provisions of Section 22 of that Act, pass to the purchaser, subject to the interest defined in that chapter as 'protected interests,' but with power to annul the interests defined in that chapter as 'incumbrances'.

Then follow certain provisos which indicate the way in which the different kinds of in cumbrances are to be annulled. Sub-section (4) then lays down that where the certificate holder is a cosharer landlord and the certificate is for his share of the rent only, the provisions of Sub-section (3) shall not apply. Mr. Guha's argument is that the only thing necessary to attract the operation of Sub-section (3) is that the tenure or holding should be sold in execution of a certificate for arrears of rent due in respect thereof. The Sub-section does not say that the certificate-creditor should be the landlord and, as in this ease admittedly, the holding was put up to sale in execution of a rent certificate the provisions of Sub-section (3) of Section 2A Public Demands Recovery Act, should apply. The contention, though plausible at first sight, does not appear to us to be sound. In the first place, Sub-section (3) is made applicable only in areas where chapter 14, Ben. Ten. Act, is in force. The entire procedure laid down in Chap. 14, Ben. Ten. Act, for sale of a tenure or holding in execution of a decree for arrears of rent is available only to the landlord who has a right of bringing the tenure or holding sale under Section 65, Ben. Ten. Act. In our opinon the reference to chap. 14, Ben. Ten. Act, would be quite unmeaning if the intention of Legislature was that a certificate-holder was not the landlord at the date when the cer tificate was filed or put into execution would have the right to bring the tenure or holding to sale. This in our opinion is made, clear by Sub-section (4) mentioned above which expressly provides that Sub-section (8) would not apply when the certificate-holder is a cosharer landlord. This obviously implies that the certificate must be obtained either by the sole landlord or by the entire body of landlords Mr. Guha contends that Sub-section (4) would be applicable only when the certificate was obtained by the landlord but in ease the certificate-holder was not a landlord the provision of this section would have no application. This, in our opinion, would be putting an improper and, if we may say so, an unnatural interpreta tion upon the plain words of the section.

5. It would be pertinent to point out that Sub-section (3) of Section 20 as it stands at present in the Public Demands Recovery Act of 1913, did not find a place in the old Act of 1895. It was introduced for the first time in 1913. Sections 60 to 64 of the same Act modified the entire Chap. 13A, Ben. Ten. Act, as it stood under the amending Acts of 1907-1908 and one uniform procedure was laid down in both the Acts with regard to the recovery of rent in a summary manner by certain landlords to whom the privilege of certificate procedure was given. Section 61 of the Act was in the same terms as Section 158 (b), Ben. Ten. Act, and it provided inter alia that when a tenure or holding was sold in execution of a certificate under the Public Demands Recovery Act the tenure or holding would pass to the purchaser if such certificate was filed on the requisition of or in favour of the sole landlord or the entire body of landlords. This section was repealed by Act 4 of 1928, but the provision relating to certificate for arrears of rent was transferred to Section 158AAA. All these provisions relating to summary realisation of rent by the privileged landlords either under Sections 60 to 64 or under chap. 13A, Ben. Ten. Act, have now been repealed by Act 6 of 1938. It Tin, we think, be argued with perfect proiety that when Sub-section (3) was added to Section 20 the Public Demands Recovery Act of 1913, the Legislature was not unmindful of the provisions contained in Sections 60 to 64 of the Act, and its object was to make a general provision according to which not merely the right, title and interest of the judgment-debtor but the holding or tenure itself would pass to the purchaser at a certificate sale provided the scertificate was for arrears of rent and had all the essentials of a rent decree proper under Chap. 14, Ben. Ten. Act. It is true that Sections 60 and 64 are no longer in the Act but Section 20 (3) which is worded in a general manner has still its utility at the present time and in fact is availed of in cases where rent certificates are obtained either against khas mahal tenants or at the instance of the Court of Wards or Revenue authorities who are in charge or management of other peoples' estates. Quite apart from these considerations, we are defi nitely of opinion that the language of Section 20 taken as a whole indicates unmistakably what the intention of the Legislature was and it is not susceptible of the interpretation sought to be put upon it by the learned advocate for the appellant. The first contention of Mr. Guha therefore cannot be accepted.

6. Mr. Guha argues in the second place that in the case before us the Collector or rather the receiver appointed by him might be said to occupy the position of the landlord with regard to the holding which was sold in execution of the certificate for arrears of rent and as the provisions of Section 20 (3) have been complied with, the holding itself would vest in the plaintiff. Now, under Section 99, Bengal Cess Act, it is open to the Collector under the circumstances specified in the section to cause a notification to be issued in the form prescribed in Schedule (p) in respect of any estate or tenure from which any arrears are due to the Collector under the provisions of the Cess Act. The notification has to be published in a certain way prescribed in the section and after the publication every payment of rent save and except to the Collector or some person by him thereunto appointed shall be null and void;......the section then provides that the Collector may recover by any process of law for the time being in force by which he might recover rent due to the Government from a tenanted estate which is managed directly by the Collector, the rent then or thereafter to become due from any occupier, tenure-holder, under-tenant or raiyat on the estate or tenure in respect of which the notification has been issued until the amount due to the Collector together with all costs shall be satisfied, whereupon the said notification shall be revoked. Thus the effect of the attachment is that it imposes a prohibition on all classes of tenants down to the actual cultivator or occupier of the soil to pay rent to anybody other than the Collector so long as the estate remains under attachment; and the Collector is empowered to collect rents from all the different classes of tenants so long as the arrears of cess are not satisfied. The term 'landlord' as defined in the Bengal Tenancy Act means a person immediately under whom a tenant holds and the term 'tenant' is defined to mean a person who holds land under another person and is or but for a special contract would be liable to pay rent for that land to that person. It cannot be suggested that all the different grades of tenants are to be deemed in law to hold their respective interests under the Collec tor as landlord, for in that case in respect of each one of these interests the Collector would be both the landlord and the tenant at one and the same time and the results would be altogether anomalous.

7. Mr. Guha who had argued the case with great thoroughness has laid stress on certain decisions of this Court, vide Brobamananda Nath v. Hem Chandra ('14) 1 A.I.R. 1914 Cal. 910, BhubaneswariKoar v. Ajodya Singh ('12) 15 C.L.J. 339, and Pashupati Nath Pal v. Durjodhan Roy ('42) 46 C.W.N. 893, for the purpose of showing that a usufructuary mortgagee of the landlord's interest, a receiver appointed by Court and also a person to whom on payment of land revenue possession of a property in suit has been given under Order 39, Rule 9, Civil P.C. have been held to be landlords in respect of rent suits brought by them, under the provisions of the Bengal Tenancy Act. In our opinion the position of a Collector exercising powers under Section 99, Bengal Cess Act is quite different from that of the other persons men tioned above. As a result of the attachment the Collector does not become the assignee of any interest in the estate or tenure as in the case of a usufructuary mortgagee nor is he put in possession of any particular estate or interest as in the case of a receiver appointed by Court or of a person who is given possession under Order 89, Rule 9, Civil P.C. The property does not pass under the charge or management of the Collector by virtue of the attachment. He does not represent the proprietary interest or in fact any other kind of interest and all that he can do is to exercise the statutory powers of realising rents from any person who holds lands in any capacity within the estate or tenure, no matter to whomever the rent might be payable. The different classes of landlords or rent receivers still retain their status and it has been held by a Division Bench of this Court, vide Manindra Chandra Roy v. Gopi Ballav : AIR1941Cal353 , that they can file suits for recovery of rents against tenants though no decree can be passed in their favour so long as the attachment subsists. In our opinion, therefore, neither the Collector nor the receiver appointed by him can be said to be the landlord, with regard to the holding which was sold in execution of the certificate for rent and consequently the provisions of Section 20 (3), Public Demands Recovery Act are not attracted to the facts of this case. The result is that we affirm the decision of the lower appellate Court and dismiss the appeal with costs.

Akram, J.

8. I agree.


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