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Najerali and ors. Vs. Baitulla Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1948Cal174
AppellantNajerali and ors.
RespondentBaitulla Mondal and ors.
Cases Referred and Ananga Mohan Roy v. Habibullah
Excerpt:
- .....1529 of 1942.-s.a. no. 1048 of 1942 arose out of rent appeal no. 172 of 1941 which arose out of rent suit no. 3677 of 1940. civil revision case no. 1529 of 1942 arose out of rent appeal no. 167 of 1941 which arose out of rent suit no. 3669 of 1940. the appellants or the petitioners, as the case may be, in these two cases are the tenants defendants in two suits for rent instituted by the purchasers at the revenue sale, the period under claim being from 1344 b.s. to 1340 b.s. the facts are otherwise similar to the facts of the two cases just disposed of.15. the suits were dismissed by the trial court but on appeals being taken by the plain, tiffs, the appeals were allowed with costs, the judgments and decrees of the trial court were set aside.16. mr. nakuleawar mukherjee who appears in.....
Judgment:

Gopendra Nath Das, J.

1. S.A. Nos. 1402 and 1403 of 1942. These two appeals arise out of two suits for rent. The plaintiffs are the appellants in these two appeals. The facts are that the plaintiffs were the proprietors of Touzi No. 208 of the Nadia Collectorate in regard to 3 annas and 16 gandas 2 krants 2 til share. They had a putni and darputni right in the remaining 12 annas and 3 gaudas 1 kara 2 krants 18 til share. In the year 1931, a suit for partition (being Suit No. 1502 of 1931) was instituted on the Original Side of this Court, to which the plaintiffs were parties either as plaintiffs or as defendants. In that suit a Receiver was appointed to the estate of the plaintiffs. The Receiver took possession on 16th December 1937. The Government revenue payable in regard to Touzi No. 208, fell into arrears. The arrears not being paid before the latest date of payment which was 28th March 1938, the touzi was brought to sale on 25th June 1938, and Baitulla and Jan Mohammad purchased the touzi on behalf of the pro forma defendants in the suit. With a view to annul the putni and darputni interest of the plaintiffs, the purchasers at the revenue sale issued proclamations and notices, both oral and written, in or about the month of Agrahayan, 1345 B.S. The present suit for recovery of arrears of rent was instituted on 13th April 1940, the claim in the suit being for the period 1343 to 1346 B.S. To this suit the tenant defendants were made principal defendants and the purchasers at the revenue sale were joined as pro forma defendants. On 15th June 1940, the Receiver appointed in the partition Suit No. 1602 of 1931 was discharged. Sometime thereafter in September 1940, the pro forma defendants filed a written statement and they alleged that as regards their zemindary interest of 8 annas odd gandas the plaintiffs were not entitled to recover rent due from tenants which fell due since 29th March 1938, that being the date after the latest day of payment of Government revenue and as regards the remaining 12 annas odd gandas shares held by plaintiffs as tenure-holders they stated that the tenure of the plaintiffs having been annulled, the plaintiffs' right to recover rent in regard to that share came to an end from the date of annulment.

2. The trial Court was of opinion that the sale for arrears of revenue was legal and valid but the notice annulling the tenure of the plaintiffs not being served on the Receiver and the proclamation issued being intended to disturb the possession of the Receiver to the estate of the plaintiffs and no leave of the Court appointing the Receiver having been taken, such proclamation could not, in law, have the effect of annulling the tenures held by the plaintiffs. On these grounds the trial Court held that the plaintiffs were entitled to recover 16 annas rent up to 29-3-1938, and 12 annas odd gandas share of rent thereafter. Against this decree the pro forma defendants preferred appeals to the lower, appellate Court. The plaintiffs preferred cross objections thereto, in which they raised two grounds, namely, that the revenue sale was not legal and secondly, that the tenures held by the defendants were not annulable. The cross-objections were disallowed by the lower appellate Court on the ground that the tenures held by the plaintiffs could be annulled in law and the revenue sale was legal and valid. The lower appellate Court allowed the appeals in part and held that the plaintiffs were entitled to 16 annas of the rent up to the third kist of 1344 B.S., that the annulment took effect in Agrahayan 1345. B.S. when the proclamation was issued and served, that accordingly from the fourth lust of 1344 B.S. to the second kist of 1345 B.S. the plaintiffs were entitled to recover 12 annas odd gandas share of rent, in their right as tenure-holders, that the claim for rent for the third kist of 1345 and 1346 B.S. was disallowed.

3. The plaintiffs have preferred these appeals, Mr. Panehanon Ghose, who appears on behalf of the plaintiffs, has raised only one point in support of the appeal, namely that theugh the service of the proclamation did not actually dispossess the Receiver in whose hands the plaintiffs' estate was at she time, yet the effect of the proclamation was to interfere with the collection of rent by the Receiver and as no leave of the Court appointing the Receiver was taken, the proclamation so served did not operate in law to determine the tenures held by the plaintiffs. Accordingly, he submitted that the decree passed by the trial Court ought to be maintained. In support of his submission, Mr. Ghose has referred to various passages from Karr on Receiver and cited several decisions of the Indian Courts as also of the English Courts to which I shall refer hereafter.

4. Before I deal with the legal position of a Receiver as regards the strangers to the suit in which the Receiver was appointed, it is necessary to set out the position of a purchaser at a sale for arrears of revenue under Act 11 [XI] of 1859. Section 29 of the Act lays down that the sale becomes final and conclusive at the noon of the 60th day from the date of sale, or if an appeal was filed before the Commissioner, on the dismissal of the appeal, whichever is earlier. Under Section 28 immediately on the sale being final, the Collector shall give to the purchaser a certificate of sale in Form A, which provides that the purchase shall take effect from the date after that fixed for the latest day of payment. Under Section 29 of the Act, the Collector shall order delivery of possession in the manner prescribed. Section 30 of the Act makes the purchaser answerable for all instalments of revenue which fall due after the latest date of payment referred to in Section 28. Under Section 37 of the Act, the purchaser of an entire estate sold under the Act acquires the estate free from all incumbranees and becomes entitled to avoid and annul all under tenures with certain exceptions specified therein. Such a purchaser acquires a paramount title to the estate that is sold.

5. In Turner Morrison and Corporation Ltd. v. Monomohan Choudhury it was pointed out that after the sale a taluk subsists until it is annulled and the purchaser cannot claim rent from the tenants of the talukdar, or eject them so long as he does not annul the taluk. The mode of annulment, however, is not prescribed by the Act. In Sahadora Mudali v. Nabin Chand 2 A.I.R. 1915 Cal. 302 (it was held that?) the purchaser may annul the taluk by any suitable means. A formal notice is not necessary, theugh the election to avoid the under-tenure must be brought to the knowledge of the tenure-holder. Similarly, in Krishna Kalyani Dasi v. R. Braunfield 3 A.I.R. 1916 Cal. 85 it was held that all that is necessary is to notify to the encumbrancer by an unequivocal act the intention to annul the tenure, This, in short, is the position of a revenue-sale purchaser who wants to annul an under-tenure created by the defaulter.

6. I shall now deal with the legal effect of the appointment of a 'Receiver by a Court so far as the strangers to the action in which a Receiver was appointed are concerned. In Russel v. East Anglian Ry (1850) 20 L.J.Ch. 257 it has been pointed out that where the Court has appointed a Receiver and the Receiver is in possession, his possession is the possession of the Court and may not be disturbed by anyone, whether claiming by a title paramount, or under the right which the Receiver was appointed to protect. The position of persons who are not parties to the action is not affected by the order of appointment but they cannot exercise their rights without the leave of the Court. Even if their rights are paramount and if they are not actually in possession, they must apply for leave to the Court for exercise of their rights: In re Metropolitan Estates Ltd (1912) 2 Ch. 497. The title, however, to the property is not in any way prejudiced by the appointment but remains in these in whom it was vested when the appointment was made. The Court deals with possession only until the right is determined, if the right is in dispute, or until the property is realised, if the appointment is made for that purpose: see Karr on Receiver Edn. 10, p. 191. It is on this principle that in spite of appointment of a Receiver the proprietors retain their right of transferring their interest: Jabbar Ali v. Manmohan Pandey : AIR1929Cal110 and Bhadrabati Debi v. Jiban Mal : AIR1941Cal163 .

7. The proper course for a person having a paramount title who is prejudiced by a Receiver being put in his way is to apply to the Court for leave to proceed by action: Angel v. Smith (1804) 9 Ves. 335 or to come in and be examined pro interesse sue. It is, therefore, obvious that no person whether a party to the action or a stranger to the action with paramount title, can disturb the possession of a Receiver without the requisite leave or without an application to the Court appointing the Receiver.

8. The question, however, which has to be considered is whether the exercise of the option by a purchaser at a revenue sale in respect of the property in the hands of the Receiver is an act which disturbs the possession of the Receiver. It is true that the effect of the exercise of the option is to annul the under-tenures in the possession of the Receiver and to put an end to such under-tenures. In my opinion, the mere exercise of the option does not per se disturb or interfere with the possession of the Receiver. No question of taking leave of the Court appointing the Receiver arises at that stage. It may be that when the purchaser after exercising his option is brought face to face with the under-tenants and wants to realize rent from them, the leave of the Court appointing the Receiver may have to be taken. In the present case, therefore, the purchasers at the revenue sale were perfectly justified in exercising the option and thereby putting an end to the under-tenures in the custody of the Receiver. It is not for me to consider what consequences may follow from the subsequent act done by the pro forma defendants-purchasers, at the revenue sale. We are not concerned in these appeals with the remedies which the Receiver may have as against these persons for these acts.

9. I shall now deal with the cases on which Mr. Ghose has relied in support of his submission that the exercise of the option is interference with the possession of the Receiver. The first case relied on is a decision of this Court in A.B. Miller v. Ram Ranjan Chakrabarty ('84) 10 Cal. 1014. There, a suit for recovery of money was instituted against the Receiver, witheut the leave of the Court. A decree was obtained. On an appeal being taken by the Receiver, the appellate Court struck the Receiver off from the proceeding. That case, in my opinion, does not touch the present case in controversy. It merely says that the Court will not stultify itself and. pass a decree against the Receiver in regard to the properties or funds under his charge. In Jatindra Nath v. Sarfaraj Mia ('10) 14 C.W.N. 653 it was pointed out that a creditor may pursue his remedies for recovery of his dues so long as the possession of the receiver was not interfered with. The case in Roy Choudhury v. Nalini Prakash Sen 1 A.I.R. 1914 Cal. 550P was a case of direct interference by the Receiver. That was a proceeding in contempt taken by the Receiver as against certain co-owners of the Albert Hall (premises No. 15 College Square), who disturbed the Receiver and his men in taking possession and even went so far as to assault them. The next case relied on is that in Dixon v. Dixon (1904) 1 Ch. D. 161. In that case an attempt was made to induce the employees of a business in respect of which a Receiver was appointed, to leave the business and to join a rival business. This was clearly a case of active interference with the Receiver's possession and management of the business. The case in Searle v. Choat (1884) 25 Ch. D. 723 on which reliance was placed, does not, in my opinion, deal with the question as to what constitutes interference or disturbance with the possession of the Receiver. In that case an action was commenced to restrain the proceedings of the Receiver without the leave of the Court. The next case relied on, namely, in In re Metropolitan Estates Ltd (1912) 2 Ch. 497 is one of competition between two Receivers, appointed in two actions, one by a second mortgagee who had taken possession and another appointed a day earlier in the first mortgagee's suit. The Court held that the Receiver appointed in the second mortgagee's suit, who had taken possession cannot be disturbed in his possession by the Receiver who was appointed in the first mortgagee's suit a day earlier. The next case relied on by Mr. Ghose is the case in Ames v Birkenhead Docks (1855) 20 Beav. 332 That case laid down that the Court will not permit the possession of the Receiver to be interfered with, nor will it allow payment to him to be intercepted witheut the order of the Court appointing the Receiver. In my opinion, this case has little bearing on the present question, namely, whether the exercise of the option interferes with the possession of the Receiver. For the reasons indicated above, the tenures held by the plaintiffs were effectively annulled by the option exercised by the purchasers at the revenue sale.

10. Assuming that the leave of the Court was necessary to exercise the option, the question still remains whether the exercise of such an option was wholly ineffective to determine the tenures held by the Receiver. In order to succeed, Mr. Ghosh's clients have got to establish that the absence of leave renders this exercise of option on the part of the auction-purchasers a nullity. It is well established that a suit in ejectment against a Receiver without the leave of the Court may proceed but no decree will be passed till the requisite leave is obtained: Rustomjee Dhanjibhai v. Frederick 6 A.I.R. 1919 Cal. 426. As was pointed out by Pratt J. in Jamsbedji F. Shroff v. Husseinbhai Ahmedbhai 7 A.I.R. 1920 Bom. 11 there is no statute law which requires a leave of the Court appointing the Receiver. It is a matter of procedure and is intended to maintain the dignity of the Court by which the Receiver was appointed and that it is incompatible to allow the Court's officer to be interfered with in his enjoyment of the property unless the leave of the Court appointing him was obtained previously. Neither of these considerations affects the jurisdiction of the Court to entertain the suit: see also High on Receivers, Edn. 2, p. 254A.

11. In my opinion, therefore, the tenures of the plaintiffs were duly annulled. It may be pointed out that if the law were otherwise, the position would be that the purchaser at the revenue sale who has got a statutory right to annul the encumbrances cannot exercise the option unless he goes to the Court appointing the Receiver and obtains necessary sanction. Such a procedure would be, in my opinion, extremely inconvenient. The Receiver may be in possession of tenancies at will. The tenancy may have to be determined by the service of a notice to quit. According to Mr. Ghose, these preliminary steps cannot be taken unless leave of the Court is taken. This would be opposed to the rule now well established that a suit for ejectment against Receiver can be instituted and may proceed theugh leave of the Court has to be taken before the suit is brought to a hearing.

12. There is also autherity for the proposition that in order that a person may exercise his statutory right, leave of the Court is not necessary: Pokker v. Kunhammad 6 A.I.R. 1919 Mad. 257 Labh Singh v. Taj Din ('31) 18 A.I.R. 1931 Lah. 436 and Kelu Achan v. Thandavan Chettiar : AIR1933Mad340 In the facts of the present case, a purchaser at a revenue sale must exercise his option before he can avail himself of the statutory right to annul the under-tenures.

13. The only point taken on behalf of the appellant fails. The result is that these appeals are dismissed with costs. Leave to appeal under Clause 15, Letters Patent, which is prayed for, is.

14. S.A. No. 1048 of 1942 with Civil Rule No. 1529 of 1942.-S.A. No. 1048 of 1942 arose out of Rent Appeal No. 172 of 1941 which arose out of Rent Suit No. 3677 of 1940. Civil Revision Case No. 1529 of 1942 arose out of Rent Appeal No. 167 of 1941 which arose out of Rent Suit No. 3669 of 1940. The appellants or the petitioners, as the case may be, in these two cases are the tenants defendants in two suits for rent instituted by the purchasers at the revenue sale, the period under claim being from 1344 B.S. to 1340 B.S. The facts are otherwise similar to the facts of the two cases just disposed of.

15. The suits were dismissed by the trial Court but on appeals being taken by the plain, tiffs, the appeals were allowed with costs, the judgments and decrees of the trial Court were set aside.

16. Mr. Nakuleawar Mukherjee who appears in support of the appeal and the civil revision case, besides urging the point raised by Mr. Panchanan Ghose in the appeals just now disposed of and accepting his submissions, raised two additional grounds.

17. The first contention raised has been disposed of already and the reasons given need not be restated.

18. The second, contention raised is that as the option was exercised in Agrahayan 1345 B.S. the claim for rent upto the second kist of 1345 B.S. as regards 12 as. odd gandas share should have been disallowed.

19. This contention is correct. In fact, the lower appellate Court observed at p. 120 of the paper took that 'the tenure holders were not entitled to realise any rent from the date of annulment The final order passed is obviously a slip on the part of that Court.' The view is also supported by the observations of the Judicial Committee in Turner Morrison and Corporation Ltd. v. Monomohan Choudhury which runs as follows:

Unless and until the taluk is annulled, it continues; the talutdar becomes the under-tenant of the purchaser, and the tenants holding under him are not affected by the change of proprietorship. There is no privity of contract between them and the purchaser, and the latter cannot either claim rent from them or eject them as long as he allows the taluk to continue.

20. The purchaser at the revenue sale cannot, therefore, claim rent from the tenants until he exercises the option of annulling the intermediate tenure. Such option when exercised brings him face to face with the tenants and he becomes entitled to recover rent from the latter which fell due since the date of annulment.

21. This view is supported by the decision in Arua Chandra v. Sarojit Sen : AIR1934Cal44 which was a case of sale under Begulation 8 [VIII] of 1819 and by the decision in Jitendra Nath v. Jahar Lal Das ('45) 50 C.W.N. 37 at pp. 40 and 47 which was a case of revenue sale, the purchaser being held entitled to recover rent from the date of institution of certificate cases which constituted the exercise of option by the revenue sale purchaser. The observations of Biswas J. in Bibhuti Bhusan v. Promoda Sundari Debi : AIR1939Cal468 do not militate against the above view; there the question arose in a suit for compensation as between the purchaser at the revenue sale and the tenure-holders.

22. The third contention raised is that as the intermediate tenure-holders were not made parties, the suits for rent were not maintainable. In support of this contention, reliance was placed on the decisions in Lodai Mollah v. Kallydeo Roy ('82) 8 Cal. 238, Indra Narain v. Sarbasona Dasi : AIR1925Cal743 and Ananga Mohan Roy v. Habibullah : AIR1931Cal673 In my opinion, the cases relied on deal with an entirely different question viz., that in suits for rent, questions of title may be gone into under certain circumstances. I do not see why the intermediate tenure-holders whose interests, according to the plaintiffs, have ceased, should be impleaded. Mr. Mukherjee relies on a statement in the plaint that the tenants had attorned to the plaintiff: vide the words 'Kar adhaye dakhalkar achi.' It is true that the plaintiffs have failed to prove realisation of rent from the tenant defendants since the revenue sale. But this does not disentitle them from receiving rent on the strength of their title derived from revenue sale, when the tenant's plea of payment of rent to the outgoing tenure holders has been negatived. This contention fails.

23. The result, therefore, is that the appeal and the civil revision case are allowed in part. The plaintiff will be entitled to a decree for 3 as. 16 gandas 2 k. 2 til share of the rent from the 4th kist of 1844 B.S. to the 2nd kist of 1345 B.S. and to 16 as. rent from the 3rd kist of 1346 B.S. to 1346 B.S. The rest of the claim for rent will be dismissed. The order for costs passed by the Court of appeal below will stand, but there will be no order for costs in this Court both in the appeal and in the civil revision case. Leave to appeal under Clause 15, Letters Patent which has been prayed for, is refused.


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