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Dhorendra Krishna Mukherjee Vs. Mohendra Nath Mukherjee and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in70Ind.Cas.869
AppellantDhorendra Krishna Mukherjee
RespondentMohendra Nath Mukherjee and ors.
Cases ReferredNagendra Nath Basu v. Parbati Charan
bengal public demands recovery act (iii b.c. of 1913), section 36, whether retrospective - wrongful sale under old act--suit for recovery after passing of new act, maintainability of. - law as essential preliminary to the institution of a regular suit for cancellation of a sale held under that statute. this view had been previously formulated by this court in byjnath sahoo v. seetul pershad 2 b.l.r. (f.b.) 1 : 10 w.r. f.b. 66 : 1 ind. dec. (n.s.) 575 and harkhoo singh v. bunsidhur singh 25 c. 876 : 2 c.w.n. 360 : 13 ind. dec. (n.s.) 572, and was subsequently confirmed by the judicial committee in mahomed jan v. ganga bishun 10 ind. cas. 272 : 38 c. 537 : 15 c.w.n. 443 : 9 m.l.t. 446 : 8 a.l.j. 480 : 13 c.l.j. 525 : 13 bom. l.r. 413 : (1911) 2 m.w.n. 277 : 21 m.l.j. 1148 : 38 i.a. 80 (p.c.) and mutsaddi mian v. mahomed idris 34 ind. cas. 283 : 19 c.w.n. 764 (p.c.). the position consequently is that, when the revenue authorities, on the 2nd september 1907,.....

1. This is an appeal by the third defendant in a suit for recovery of possession of land upon establishment of title. The plaintiff alleged that the disputed property had been sold on the 2nd September 1907 under the Public Demands Recovery Act, although there were no arrears due in respect of the land he consequently prayed for recovery of possession from the representatives-in-interest of the purchaser at the sale. The Courts below have decreed the suit. That decree has been assailed before us on the ground that the suit was barred under Section 36 of the Public Demands Recovery Act, 1913. This argument is based on the assumption that the right of the plaintiff to institute the present suit is regulated by the provisions of a Statute which was not in existence when his property was brought to sale. There can be no question that this contention cannot be supported on principle, and, as we shall presently see, is opposed to well known authorities.

2. The sale was unquestionably held without jurisdiction. This was explained by the Judicial Committee in the case of Balkishen Das v. Simpson 25 C. 833 : 25 I.A. 151 : 2 C.W.N. 513 ; 7 SAr. P.C.J. 363 : 13 Ind. Dec. (N.S.) 543 (P.C.), where a sale had been held under the Revenue Sale Law in respect of an estate which was not in arrears. Lord Wetson pointed out that the sale by the Revenue Authorities was without jurisdiction and that it was consequently not necessary for the proprietor to take recourse to the procedure prescribed in the Revenue Sale Law as essential preliminary to the institution of a regular suit for cancellation of a sale held under that Statute. This view had been previously formulated by this Court in Byjnath Sahoo v. Seetul Pershad 2 B.L.R. (F.B.) 1 : 10 W.R. F.B. 66 : 1 Ind. Dec. (N.S.) 575 and Harkhoo Singh v. Bunsidhur Singh 25 C. 876 : 2 C.W.N. 360 : 13 Ind. Dec. (N.S.) 572, and was subsequently confirmed by the Judicial Committee in Mahomed Jan v. Ganga Bishun 10 Ind. Cas. 272 : 38 C. 537 : 15 C.W.N. 443 : 9 M.L.T. 446 : 8 A.L.J. 480 : 13 C.L.J. 525 : 13 Bom. L.R. 413 : (1911) 2 M.W.N. 277 : 21 M.L.J. 1148 : 38 I.A. 80 (P.C.) and Mutsaddi Mian v. Mahomed Idris 34 Ind. Cas. 283 : 19 C.W.N. 764 (P.C.). The position consequently is that, when the Revenue Authorities, on the 2nd September 1907, proceeded to sell the disputed property for an imaginary arrear; there was usurpation of jurisdiction on their part and the sale was a nullity, see Janakdhari Lal v. Gossain Lal 1 Ind. Cas. 871 : 37 C. 107 : 13 C.W.N. 710 : 11 C.L.J. 254. Thereupon, a right accrued to the plaintiff, under the law as it then stood, to institute a suit to recover the property within 12 years from the date of dispossession. This is clear from the decision of this Court in Nandan Missir v. Lala Harakh Narayan 5 Ind. Cas. 337 : 14 C.W.N. 607 : 11 C.L.J. 266. It is difficult to conceive that a right of this description could be affected by the retrospective operation of a subsequent Statute. It is sufficient. for our present purpose to refer to the decision of the Judicial Committee in Colonial Sugar Refining Co, v. Irving (1905) A.C. 369 : 74 L.J.P.C. 77 : 92 L.T. 738 : 21 T.L.R. 513 which has been repeatedly applied in this Court. There is nothing in the judgment of this Court in Manjuri Bibi v. Akkel Mahomed 19 Ind. Cas. 793 : 17 C.L.J. 316 : 17 C.W.N. 889, which militates against this view nor is the appellant entitled to invoke the assistance of the decision in Nagendra Nath Basu v. Parbati Charan 35 Ind. Cas. 339 : 20 C.W.N. 819. He is no doubt a purchaser from the purchaser at the sale held under the Public Demands Recovery Act. But that sale was a nullity, and when the root of the title set up by the appellant has been completely destroyed, we cannot imagine how he can present an effective bar to the claim of the rightful owner. We are consequently of opinion that the suit has been rightly entertained.

3. The result is, that the decree made by the lower Appellate Court must be affirmed and this appeal dismissed with costs.

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