Skip to content


Re Fazoo Mia Vs. Sultan Ahmed Choudhury - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal817
AppellantRe Fazoo Mia
RespondentSultan Ahmed Choudhury
Cases ReferredOmar Ali Majhi v. Moonshi Basiruddeen Ahmad
Excerpt:
- .....that any difference should be operated by the fact that the landlord happens to be the auction-purchaser himself. it is anomalous that the landlord, by using the machinery of the code should be able to give a better title to himself as an auction-purchaser than he could have given in the same way to a third party auction-purchaser.6. the other matter that seems to me to govern the consideration of this question is this : if the withdrawal of the deposit made under rule 89 is to mean that the landlord has recognized the depositor as tenant of this non-transferable occupancy jote then it does seem anomalous that such a person as the opposite party here should have the right to make the deposit. it clearly cannot be the law that the landlord by the machinery of rule 89, can be.....
Judgment:

Rankin, C.J.

1. This is an application by a decree-holder who is at the same time the auction-purchaser of a nontransferable occupancy holding and the landlord. The landlord obtained a rent decree and has purchased the holding at the execution sale. Thereupon the opposite party, who claimed to have purchased the entire holding from the tenant, but who has been found by both the Courts below to have purchased a part only of the holding from the tenant, seeks to exercise the right given by Rule 89, Order 21, Civil P.C. The Courts below have both held that he is entitled to exercise that right and the landlord applies in revision to us to hold that the purchase of a part of a noon-transferable occupancy holding is not within the language of Rule 89. The matter is a very important one and it is difficult not to have recourse to a comparison with Section 170, Bengal Tenancy Act.

2. At first the course of decisions under Section 170 appears to have tended in favour of a purchaser of the non-transferable jote, but it is now settled by decisions that such a purchaser does not come within the description in Sub-section (3), Section 170 of

any person having in the tenure or holding any interest voidable on the sale.

3. Now the language of that section is different from the language of Rule 89, which speaks of a person

either owning such property or holding an interest therein by virtue of a title acquired before such sale.

4. It is now settled, as I have said, that such a person as the opposite party before us does not hold an interest voidable on the sale. That seems to be reasonably clear upon the wording of Sub-section (3), because if the sale is to stand at all it is quite clear that the transfer to the previous purchaser cannot subsist with it. An interest voidable on the sale means an interest the existence of which is compatible with the auction purchase, though a qualification of it, as for example, an encumbrance.

5. We have, however, to apply Rule 89 and we find that both the Courts below have proceeded upon the decision in the case of Omar Ali Majhi v. Moonshi Basiruddeen Ahmad [1908] 7 C.L.J. 282, where it was definitely laid down under Section 310-A, Civil P.C., 1882 that such a person as the opposite party before us, has the right to have a sale set aside on paying the money prescribed as a deposit under Section 103-A of the previous Code. I am far from saying that the question is an easy one. To my mind there are three governing principles. In the first place it does not seem to me to matter for purposes of Rule 89, whether the purchaser is a purchaser of a part or of the whole of a non-transferable occupancy jote. In the second place, it seems to me unreasonable that any difference should be operated by the fact that the landlord happens to be the auction-purchaser himself. It is anomalous that the landlord, by using the machinery of the Code should be able to give a better title to himself as an auction-purchaser than he could have given in the same way to a third party auction-purchaser.

6. The other matter that seems to me to govern the consideration of this question is this : If the withdrawal of the deposit made under Rule 89 is to mean that the landlord has recognized the depositor as tenant of this non-transferable occupancy jote then it does seem anomalous that such a person as the opposite party here should have the right to make the deposit. It clearly cannot be the law that the landlord by the machinery of Rule 89, can be obliged either to go without his rent or to recognize the transferee whom he does not wish to recognize in the case of a non-transferable jote.

7. There are other difficulties and serious difficulties in the question before us and when I find that as far back as 1908 this question was decided by a Division Bench in favour of a purchaser of a portion of a non-transferable occupancy holding, I am obliged to follow that ruling unless I can be persuaded that it is a ruling from which this Court ought to differ. In that case it would be our duty to refer the matter - and a very important matter - to a Full Bench for decision. On the whole I am not prepared to say that I differ from the ruling laid down in Omar Ali Majhi v. Moonshi Basiruddeen Ahmad [1908] 7 C.L.J. 282. I doubt extremely whether it is true that a mere acceptance or withdrawal of this deposit would operate to oblige the landlord to recognize this tenant but whether it be true or not it is perhaps somewhat late in the day to abridge still further the rights of a transferee of a non-transferable occupancy jote in Bengal. It would be putting back the clock to overrule the decision which is more than 20 years old and to hold that the interest which such a person as the opposite party before us has obtained from the tenant is no interest at all or that merely because the landlord is the auction-purchaser he cannot exercise the right under Rule 89. On the whole I chink this is a case where we ought to obey the principle of stare decisis.

8. In my judgment this rule should be discharged with costs : hearing-fee two gold mohurs.

Costello, J.

9. I agree and for the same reasons.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //