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Abdul Sawan Sheikh and ors. Vs. Nekbar Mandal - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.632
AppellantAbdul Sawan Sheikh and ors.
RespondentNekbar Mandal
Excerpt:
bengal tenancy act (viii of 1885), sections 65, 162, 163, - nature of property to be sold in execution--implied assertion by decree-holder--whether decree-holder can subsequently say that under-raiyat's interest was sold--decree-holder bound by his own representation. - .....execution thereof brought the property to sale, on the 6th jane 1898, when it was purchased by one shazad mandal, who died in january 1909 and is now represented by the defendants. the plaintiff, on the 24th february 1909, commenced the present suit to eject the defendants on the ground that shazad mandal was an under-raiyat and had no heritable interest in the property. the court of first instance dismissed the suit on the ground that it was not competent to the plaintiff, in view of the proceedings in execution of the decree for arrears of rent, to allege or to prove that basu was an under-raiyat. upon appeal, the district judge has reversed that decision. in our opinion, the decree of the district judge cannot possibly be supported.2. the sale-certificate which was granted to shazad.....
Judgment:

1. This is an appeal on behalf of the defendants in an action in ejectment. The plaintiff, as landlord of the disputed property, in 1898 sued his tenant, Basu by name, for arrears of rent. He obtained a decree and in execution thereof brought the property to sale, on the 6th Jane 1898, when it was purchased by one Shazad Mandal, who died in January 1909 and is now represented by the defendants. The plaintiff, on the 24th February 1909, commenced the present suit to eject the defendants on the ground that Shazad Mandal was an under-raiyat and had no heritable interest in the property. The Court of first instance dismissed the suit on the ground that it was not competent to the plaintiff, in view of the proceedings in execution of the decree for arrears of rent, to allege or to prove that Basu was an under-raiyat. Upon appeal, the District Judge has reversed that decision. In our opinion, the decree of the District Judge cannot possibly be Supported.

2. The sale-certificate which was granted to Shazad Mandal is in existence although the execution record has been completely destroyed. That sale-certificate recites that on the 6th Jane 1898, Shazad Mandal parohaied the disputed property at a sale held in execution of a decree for rent under Section 163 of the Bengal Tenancy Act. Now Section 163 provides for a sale on the basia of an application made under Section 162. The latter section lays down that when a decree has been passed for an arrear of rent due for a tenure or holding, and the decree-holder applies under Section 235, Civil Procedure Code of 1882, for the attachment and sale of the tenure or holding in execution of the decree, he shall produce a statement showing the parganas, estate and village in which the land comprised in the tenure or holding is situate, the yearly rent payable for the same and the total amount recoverable under the decree. Section 163 in Sub-section (1) then provides that when the decree-holder has made an application as prescribed in Section 162, the Court shall, if it admits the application and orders execution of the decree as applied for, issue simultaneously the order of attachment and the proclamation required by Section 287, Code of Civil Procedure. Sub-section (2) of Section 163 next provides that certain statements are to be inserted in the sale proclamation in the case of a tenure or a holding of a raiyat holding at fixed rates and in the case of an occupancy holding, respectively. It is manifest, upon an examination of these sections, that they deal with applications for execution of decrees for rent obtained in respect of a tenure or holding held at a fixed rate or an occupancy holding; and this is confirmed by a reference to Section 65 of the Bengal Tenancy Act. When, therefore, the decree-holder makes an application under Section 162 and obtains an order under Section 163, there is an assertion by him that the property about to be sold at his instance is at least an occupancy holding. If a purchaser takes the property on the faith of this assertion, it is obviously not open to the decree-holder subsequently to turn round and contend that what had been sold is the interest of an under-raiyat. He is bound by his representation and cannot be permitted to resile from his statement, to the detriment of the purchaser. In the case before us, if the plaintiff were allowed to succeed on the ground that the interest acquired by Shazad Mandal was that of an under-raiyat, the gravest injustice would be done to the defendants. The plaintiff had, for the purpose of this suit, valued the property at Rs. 90; Shazad Mandal purchased the holding for Rs. 95. It is impossible to believe that he would have paid such a large sum of money if he had any suspicion that what he purchased was the precarious interest of an under-ratyat. The learned Vakil for the respondent has finally contended that an occupancy right is a creature of the statute and cannot be founded on estoppel. The argument is obviously fallacious. The sale under Section 163 of the Bengal Tenancy Act was in substance equivalent to an agreement between the plaintiff and the purchaser that what the latter acquired was an occupancy holding, and the Court will not now allow the plaintiff to resile from that position.

3. The result is that this appeal is allowed, the decree of the District Judge set aside and the suit dismissed with costs in all the Courts.


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