1. This is an appeal by the plaintiffs in a suit brought by them for a declaration that a certain revenue sale held under Bengal Act 7 of 1868 read with Act 11 of 1859 was without jurisdiction and for confirmation of possession. The land in suit is an Osat Nimhowla in a Government Khas Mahal in the Sunderbans. It appears that one Sunu Howladar held a Howla or tenure directly tinder Government. Subsequently, in 1902 he created a Nimhowla or under-tenure by granting settlement of 175 bighas odd out of his lands to the plaintiffs. Thereafter, the plaintiffs sold the Nimhowla to one Ramjiban and took a sub-lease or Osat Nimhowla from him. In 1933, the Government sold the Howla for arrears of rent and purchased it themselves. Then in 1937 they similarly sold and bought the Nimhowla and finally on 23rd June 1938, the Osat Nimhowla was sold for its arrears to the principal defendant in the present suit. It is this last sale that is attacked in the suit and it is attacked on the ground that the interest of the Osat Nimhowladar was not saleable under the aforesaid Acts. The trial Court decreed the suit but the decree was reversed by the lower appellate Court. The only point for decision in this second appeal is whether at the time of the sale in 1938 the Osat Nimhowla was a tenure that could be properly sold under the Acts of 1859 and 1868. Speaking generally, Act 11 of 1859 directs the sale of estates for arrears of revenue and Act 7 of 1868 directs the sale of tenures for arrears in the same manner and subject to the same provisions. The term 'tenure' is defined in the Act of 1868 thus:
The word 'tenure' includes all interests in land, whether rent-paying or lakhiraj (other than estates as above denned), and all fisheries, which, by the terms of the grants creating the same or by the custom of the country, are transferable, whether such .'tenures are resumable or not and whether the right of selling or bringing them to sale for an arrear of rent may or may not have been speoially reserved by stipulation in any instrument.
The provision for sale of tenures is contained in Section 11 of the same Act which runs:
Whenever any revenue payable to Government in respect of any tenure not being an estate shall be in arrear after the latest day of payment fixed in the manner prescribed in Section 3 of Act 11 of 1859, the Collector to whom such revenue is payable may cause the tenure to be sold in the manner and subject to the provisions in and by the said Act 11 of 1859 provided for the sale of estates for the recovery of arrears of revenue.
The appellants contend that the Osat Nimhowla was not a saleable tenure within the meaning of these provisions. The argument is briefly this: To be saleable under the Act a tenure must first be liable to payment of revenue. 'Revenue' is defined in the Act as what is annually payable to the Government by the proprietor and proprietor in the case of a tenure means the tenant by whom his tenure is held directly under the Crown. Therefore a tenure to be saleable must be one held directly under the Crown. Further, it must be transferable for otherwise it would not be a tenure at all within the definition quoted above. Sunu Howladar's Howla was undoubtedly a tenure. But it is contended that when that Howla was sold for arrears of revenue and purchased by the Government both the Nimhowla and the Osat Nimhowla came to an end. These subordinate interests may have been transferable tenures as originally created and vis-a-vis the persons creating them but they were nothing more than incumbrances on Sunu's Howla so far as the Government were concerned, and upon the Howla being sold they were extinguished by Section 12 of the Act, 1868; and even if the Nimhowla is held to have been subsequently revived in some way, nevertheless, when that Nimhowla in its turn was sold for arrears of revenue, the effect was to extinguish the Osat Nimhowla. In support of the contention that the Nimhowla and the Osat Nimhowla were nothing more than incumbrances the appellants point to certain entries in the settlement papers which consistently describe them as 'Sarkar Bahadur kartrick aswikrita,' that is to say, as not recognised by the Government. In other words vis-a-vis the Government, they must be treated as mere incumbrances which were swept away by Section 12 of Act 7 of 1868. The relevant portion of this section runs:
The purchaser of any tenure sold under the provisions of Section 11 of this Act shall acquire it free from all incumbrances which may have been imposed upon it after its creation, or after the time of settlment, whichever may have last occurred, and shall be entitled to avoid and annul all under-tenures, and forthwith to eject all under-tenants, with the following exceptions ... Thirdly, tenures created or recognised by the settlement proceedings of any current temporary settlement, as tenures bearing a rent which is fixed for the period of such settlement ....
2. The validity of the above argument on behalf of the appellants depends upon the exact effect of the entry 'not recognised by the Government' in the settlement papers. After the decisions in Lakhindra Barua v. Saroda Charan Dey ('14) 1 A.I.R. 1914 Cal. 852. and Nagendra Chandra De v. Harkumar De : AIR1932Cal514 where similar expressions were interpreted, it must be conceded that the effect of the entry is, at least, to deprive these tenures of the protection of the third exception in Section 12. But the question still remains: Are they to be looked upon as mere incumbrances swept away by the revenue sale of the Howla and Nimhowla respectively or are they to be looked upon as tenures which although not saved by the aforesaid third exception subsist until avoided and annulled Paragraph 8 of the defendant-respondent's written statement is important in this connexion. It states that he neither believes nor admits that there were Pottas creating the Nimhowla or the Osat Nimhowla. It goes on to assert that the Pottas alleged were never acted upon and that there was no stipulation or Rule for payment of the rent in the four alleged instalments of Ashar, Aswin, Pous Chaitra; and it concludes by saying that even if the plaintiffs were somehow able to prove the Pottas, neither these Pottas nor any of the terms thereof bound or could bind the Government. In view of this comprehensive repudiation, it is not possible for us in this particular case to cut down the meaning of the words 'not recognised by Government.' We are constrained to hold that they mean what the defendant-respondent himself has asserted, namely, that so far as the Government were concerned, these subordinate interests were to be entirely ignored. It follows that they were not under-tenures at all requiring to be annulled by the Government under Section 12 of Act 7 of 1868. At most they were incumbrances which fell with the revenue sales. If then the Osat Nimhowla had no existence after the sale of the Nimhowla in 1937, can it be said to have been revived or created subsequently by a fresh grant or the equivalent of a grant There is no evidence whatsoever on this point. No new grant is alleged by either side and the defendant respondent's repudiation of the kists named in the original potta shows that his own case is that the old grant was not renewed in all its incidents. There is no material on the record from which we can infer that the old grant was renewed on any ascertainable terms. Thus we are driven to the conclusion that there was no Osat Nimhowla in existence at the time of the revenue sale in 1938 and that therefore the sale was void. The appeal is allowed and the trial Court's decree is restored. The parties will bear their own costs in this Court and in the lower appellate Court.
B.K. Mukherjea, J.
3. I agree.