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Baikunta Nath Misra Vs. Laboo Nag - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.273
AppellantBaikunta Nath Misra
RespondentLaboo Nag
Cases ReferredIcharam Singh v. Nilmony Bahida
Excerpt:
central provinces tenancy act (xi of 1898), sections 46(3), 47 and 95 - occupancy right, transfer of--procedure to be followed by landlord to avoid transfer--application to revenue officer--suit in civil court, whether lies. - .....a transfer in contravention of the provisions of section 46, the landlord may, on application to a revenue officer, made within two years from the date on which in pursuance of the transfer the tenant parted with possession of the land, be placed in possession. this clearly enacts the only method by which a transfer may be avoided. if, however, more is required it is to be found in section 95 of the act which says that 'save where it is expressly provided to the contrary, no court other than the court of a revenue officer or settlement officer shall fix, alter or commute any rent or call in question any rent fixed by a revenue officer or settlement officer, or shall take cognizance of any dispute or matter in respect of which authority is given by this act to a revenue officer or a.....
Judgment:

1. This is an appeal by the plaintiff in a suit for ejectment, his suit having been dismissed by both the Courts below. It appears that the tenant of the holding in question, which is governed by the provisions of the Central Provinces Tenancy Act XL of 1898, before 1905 sold half the share of his holding to the present defendants. On 8th May 1907, the tenant mortgaged the other half of his share to one Manikram with possession. The present plaintiff who is the landlord applied in 1908, under Section 47 of the Central Provinces Tenancy Act, for possession of the land. He was given a decree on 31st October 1908 in respect of the mortgaged moiety. As to the moiety which had been sold, it was held that his application was oat of time, having been made more than two years after the sale. On 17th August 1909, he filed the present suit in the Munsif's Court for precisely the same relief as to the moiety which was sold., The Munsif dismissed the suit on other grounds than that taken by the lower Appellate Court. In the lower Appellate Court, the plaintiff failed on the ground that having lost his case under Section 47, he could not again bring a suit in a Civil Court for the same relief. This is the only point which has been argued before us. In our opinion, the words of the Act are too plain to admit of any doubt. Under Section 46(3), an occupancy tenant is prohibited from making certain transfers and it is enacted that 'every such sale, gift, mortgage, sublease (other than for a period not exceeding one year) or transfer shall be voidable in the manner and to the extent provided by the two next following sections.' That must be taken to mean that an occupancy right is transferable but that transfers may be avoided by the landlord in a particular way. Section 47 says that if an occupancy tenant makes such a transfer in contravention of the provisions of Section 46, the landlord may, on application to a Revenue Officer, made within two years from the date on which in pursuance of the transfer the tenant parted with possession of the land, be placed in possession. This clearly enacts the only method by which a transfer may be avoided. If, however, more is required it is to be found in Section 95 of the Act which says that 'save where it is expressly provided to the contrary, no Court other than the Court of a Revenue Officer or Settlement Officer shall fix, alter or commute any rent or call in question any rent fixed by a Revenue Officer or Settlement Officer, or shall take cognizance of any dispute or matter in respect of which authority is given by this Act to a Revenue Officer or a Settlement Officer.' It was argued that because the jurisdiction of Civil Courts is specially excepted under some sections, it should not be taken to be excepted in the case of Sections 46 and 47. But this argument is clearly unsound. Under those sections, such a provision is obviously necessary as in the case of Section 18(2). Here the words of the Act are plain and prescribe the remedy which a landlord has under the circumstances of the case. This view was accepted by Mr. Justice Mookerji as the law in the case of Icharam Singh v. Nilmony Bahida 7 C.L.J. 499 at pp. 500, 501; 35 C. 470; 12 C.W.N. 636. It is true that that was a somewhat different case governed by the old Act of 1883.

2. We have been also referred to a remark of Mr. Justice Brett in Second Appeal No. 2057 of 1908, decided on 12th May 1908, in which the learned Judge said: So far as I am able to understand the provisions of Section 47 of the Act which deal with applications to set aside transfers, they require that the applications should be made to the Revenue Officer within two years from the date of transfer; but they do not provide that in the event of their not being made within that period, any person affected by it will lose his right to bring a suit for establishment of his title in a Civil Court.' That was a case in which a tenant asked for re-instatement and the learned Judge referred to Section 92 but his attention does not appear to have been expressly directed to the provisions of Section 46(3) which must, of course, be read with Section 47: nor is any mention made of Section 95.

3. For these reasons, we think that the appeal fails, and it is accordingly dismissed with costs.


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