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NITYA GOPAL GOSWAMI V/S GANGAMANI DEVI, decided on Friday, March 24, 1950.
[ In the High Court of Patna, AFAD 1313 Of 1947. ] 24/03/1950
Judge(s) : SINHA & RAI
Advocate(s) : R.S. Chatterji, P.K. Bose, A. Shasisekhar Sinha, S.C. Majumder.
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nitya,gopal,goswami,gangamani,devi,

  "1950 AIR (Pat) 384"  







judgment - Rai J.( 1. ) This is an appeal by plaintiff 6 againat the judgment and decree passed by the Additional Subordinate Judge at Purulia dated 10th April 1947 reversing those of the Munsif at Raghunathpur.( 2. ) The present appellant along with others had filed a suit for a declaration that the auction sale in Rent Execution case no. 136 of 1936-37 of the Court of the Munsif at Raghunathpur was ultra vires and that it did not affect the interest of the plaintiffs. They further prayed for khas or joint possession aad mesne profits.( 3. ) The case of the plaintiffs was that in village Jagannathdih there was a brahmottar tenure in which one Gostho Bihari Goswami had one-third share Banbihari Goswami had one-third share Gumdas Goswami had one-sixth share and Ramdas Goswami had one-sixth share. The rent and cess in respect of the tenure were payable to one Shankari Prasad Singh Das defendant 3. Gurudas Goswami had gifted his share in the tenure to his mother Sourabh Sundari Devi and after the death of the latter the share in the tenure was inherited by Nitya Gopal Goswami who is the appellant in this Court. In the year 1933 the landlord instituted a rent suit and without proper service of notice succeeded in getting a fraudulent and collusive rent decree. The landlord executed that decree in execution case No. 136 of 1936-37 and put the entire tenure to sale which was purchased by defendant 2 Bhudeb Chandra Roy in the farzi name of his wife Sm. Gongamani Devi defendant 1. On 3rd July 1937 the auction purchaser claimed to have taken symbolical delivery of possession over the tenure. The case of the plaintiffs further was that the landlord had not joined Sourabh Sundari Devi as a party defendant in the rent suit and though Gostho Bihari Goawami had died before the execution was started the landlord chose to proceed in execution against him as if he was alive and his heirs and legal representatives were not brought on the record. On account of this the plaintiffs claimed the rent decree and the rent sale to be void and without jurisdiction.( 4. ) The suit was contested by defendants 1 and 3 who filed written statements contending that the suit was barred by limitation and that it was also barred under the provisions of Sections 214 and 258 Chota Nagpur Tenancy Act according to those defendants Goatho Bihari Goswami did not die before or daring the execution proceedings. According to them by a family arrangement Ban Bihari Goawami had acquired the share of Gostho Bihari Goswami in the village long before the institution of the suit and hence Gostho Bihari or his heirs were not necessary parties to the execution proceedings. They further claimed that every process in the suit and in the execution proceedings had been properly served and that the sale was not without jurisdiction and was binding upon the plaintiffs.( 5. ) The trial Court decreed the suit holding that the sale in question was not binding upon the plaintiffs who were entitled to recover possession over their share of the tenure. The plaintiffs were also held entitled to mesne profits the amount of which was to be determined later on.( 6. ) On appeal by defendant 1 the appellate Court has modified the judgment and decree passed by the trial Court. The appellate Court haa held that Sourabha Sundari Davi was not in actual possession of the share of Gurudas Goswami that the legality of the rent decree or the execution sale was not in any way affected by her non-joinder in those proceedings and hence Nitya Gopal Goswami was not entitled to avoid the sale in respect of one-sixth share which belonged to Gurudas Goswami in the tenure.( 7. ) As regards the non-joinder of the heirs of Gostho Bihari Goswami in the execution proceedings the lower appellate Court also affirmed the finding of the trial Court that Gostho Bihari had died on 3rd November 1934 long before the execution started. The Court of appeal below therefore held that the sale in respect of Gostho Bihari's share in the tenure was altogether void and it cannot be binding on his heirs the plaintiffs l to 5. The lower appellate Court was further of opinion that the suit was maintainable and was not barred by limitation. Hence the appeal by Nitya Gopal Goswami plaintiff 6 and the cross-objection on behalf of defendant 1 concerning the share of Gostho Bihari Goawami.( 8. ) Mr. S. C. Mazumdar the learned counsel for the appellant contended that as the tenure was not fully represented during the execution proceedings even on the findings of the Court of appeal below the revenue Court had no jurisdiction to sell the holding under Section 208 Chotanagpur Tenancy Act. There is no doubt that the sale of the tenure was purported to have been held under Section 208 Chotanagpur Tenancy Act and has been so found by the Courts below. Section 208 Chotanagpur Tenancy Act before the recent amendment runs as follows :(1) When a decree passed by the Deputy Commissioner under this Act la for an arrear of rent due in respect of a tenure or holding the decree-holder may apply for the sale of such tenure or holding and the tenure or holding may thereupon be brought to sale in execution of the decree according to the provisions for the sale of under-tenures contained in the Bengal Rent Recovery (Under Tenures) Act 1865; and all the provisions of that Act except Sections 12 13 14 and 15 thereof shall as far as may be applied to such sale : Provided that the purchaser of a tenure at any such sale shall not be entitled to annul any lease right or tenancy referred to in Clauses (a) to (e) of Section 14 of this Act: Provided also that the Commissioner may by order in any case in which he may consider it desirable so to do (a) prohibit the sale of any tenure or portion thereof or (b) stay any such sale for any period specified in the order : Provided also that any sale of a resumable tenure under this section shall not affect the right of the grantor or his successor-in-title to resume such tenure but shall be made subject to such right. (2) When a warrant of execution has been issued under this chapter against the person or movable property of the judgment-debtor no application shall be received under Sub-clause (1) while such warrant remains in force ( 9. ) According to Mr. Mazumdar the revenue Court could sell a tenure only when all parsons interested in the tenure were before it. In support of his contention he has cited the case of Jyoti Prasad v. Tara Sankar 12 Pat. 799: (A. I. R. (20) 1933 pat. 537). He has also relied upon the case of Jagdishwar Dayal Singh v. Dwarka Singh 12 Pat. 626 : (A. i. R. (so) 1933 P.c. 122). He also placed before us an unreported judgment of this Court in the case of Midnapur Zamindari Co. Ltd. v. Chintomani Mandal (S.A. No. 40 of 1944 decided by Fazl Ali C. J. and Ray J. on 20th March 1946). The Patna decisions and the decision of the Privy Council have clearly laid down that unless the tenure is fully represented in the suit or in the execution proceeding a sale of the entire tenure held by a revenue Court under Section 208 Chotanagpur Tenancy Act is void. Their Lordships of the Privy Council in the case of Jagdishwar Dayal Singh v. Dwarka Singh 12 Pat. 626 : (A. I. R. (20) 1953 P. C. 122) clearly laid down thatunder Chap. 16 of the Act a statutory jurisdiction is conferred on the Revenue Courts but that jurisdiction must be exercised within the statutory powers conferred. If then as already stated it is not competent to order a sale of the tenure under Section 208 unless the whole interests in the tenure are represented before the Court it is clear that the order for sale of the tenure in the present case was ultra vires of the Revenue Court and it follows that the sale was not made under this chapter and was outside the jurisdiction of that Court.( 10. ) Mr. Radheshyam Chatterji tbe learned counsel for the respondents sought to distinguish the Privy Council case as well as the Patna case on the ground that in those cases one of the persons interested in tube tenure or holding had not been made party to the rent suit also. But in the present case as found by the lower appellate Court all persons interested in the tenure had not been joined as party to the execution proceeding. In my judgment the distinction suggested by Mr. Chatterji does not make any difference to the applicability to the present case of the principles laid down by the Judicial Committee in the case of Jagdishwar Dayal Singh 12 pat. 626: (A.I.R. (20) 1933 P. C. 122) aforesaid. The unreported decision of this Court in S. A. no. 40 of 1944 deals with this aapect of the case also. In that judgment it has been clearly held that in order that an entire tenure or holding may pass by sale under Section 208 Chotanagpur Tenancy Act it waa not only necessary that the rent decree should have been a proper rent decree in the strict sense of the term but that it should also have been executed as a rent decree that ia to say all the persons interested in the holding or tenure must have been brought on the record of the execution proceeding.( 11. ) Mr. Radheshyam Chatterji the learned counsel for the respondents referred to the Full Bench case of Pratap Udai Nath v. Baraik-mohan 25 Pat. 470 :(A.I.R. (33) 1946 Pat. 358 F.B.). But in that case the facts were different. There the auction sale was not that of the entire tenure. The decree in that case had been executed as a money decree and only the right title and interest of the judgment-debtors who were before the Court had passed by the sale. Agarwala C. J. who delivered the leading judgment while distinguishing the case before the Full Bench from the case of Jagdishwar Dayal Singh 12 Pat. 626 : (A.i.e. (20) 1933 P.c. 122) said as follows :In the latter case a decree for rent had been obtained without impleading all the persons interested in the tenure and in execution of that decree the tenure had been put up for sale. A person holding a mortgage then instituted a suit for a declaration that his interest was not affected by the sale as the sale held in execution of a decree made in such a suit did not pass the tenure so as to have the effect of annulling a pre-existing encumbrance on it. At the end of the judgment of the Privy Council there is an observation that the sale was void. But a perusal of the passage preceding this observation shows that on an examination of the claim in the salt he Privy Council was satisfied that what the decree-holder intended to proceed against was the interest of the defendants in the tenure. What the decision really means is that if the decree-holder intends to proceed only against the interest of the defendant in the tenure the sale of the tenure itself is void.According to this Fall Bench decision also when admittedly in the present case the entire tenure was purported to have been sold under Section 208 Chotanagpur Tenancy Act the defendants respondents cannot contend now that only the interest of those impleaded in the execution proceedings itaelf might be deemed to have passed by the auction sale.( 12. ) Mr. Radheshyam Chatterji farther referred us to the case of Jang Bahadur v. Bank of Upper India Ltd. 56 I. A. 227: (A. I. R. (15) 1928 P. C. 162) in support of his contention that non-substitution of the heirs of Gostho Bihari Goawami would not affect the jurisdiction of the revenue Court to sell the property. But the facts of that case were different. In that case what had happened was that the respondent there had obtained a final decree for sale on a mortgage in tbe Court of the Subordinate-Judge at Lucknow. As the property which the decree-holder sought to sell under the decree was situated in the District of Hardoi the decree was sent to the Court in the latter district for execution and it was numbered as execution case no. 175 at 1916 there. The judgment-debtor thereafter died on 23rd April 1920. On 35th May 1920 the decree-holder filed a petition in the Hardoi Court for substitution of the legal representative of the judgment-debtor and the executing Court at Hardoi ordered substitution and issued notice to the substituted judgment-debtors as required under the Code of Civil Procedure. The heirs and legal representatives of the original judgment-debtor appeared during the execution proceedings at Hardoi bas raised various objections. After the proceedings had been pending for about three and a half years those legal representatives. then put in a petition before the sale officer on 10th April 1924 that the sale proceedings were illegal and without jurisdiction inasmuch as the decree-holder did not get the name of the legal representative entered in the decree of the Court executing the same in accordance with the provisions of Section 50 Civil P. C. The Courts below had rejected the objections of the judgment-debtors who had gone up in appeal to the Privy Council. Their Lordships of the Judicial Committee while dealing with the objections held as follows :It the judgment-debtor dies before any such certificate is issued the Couri of transfer does not lose its jurisdiction over the execution proceeding which does not abate by reason of the death. But before execution can proceed against the legal representative of the deceased judgment-debtor the decree-holder must get an order for sustitution from the Court which passed the decree. This is a matter of procedure and not of jurisdiction. The jurisdiction over the subject-matter continues as before but a certain procedure is prescribed for the exercise of such jurisdiction. It there is non-compliance with such procedure the defect might be waived and the party who has acquiesced in the Court exercising it in a wrong way cannot afterwards turn round and challenge the legality of the proceedings.( 13. ) In the present case Gostho Bihari Go-swami had died before the execution started and his heirs and legal representatives had not been brought on the record of the execution proceedings at all and there was no case of an irregularity as contemplated by the judgment of the Privy Council in the aforesaid case. Here the tenure was not fully represented during the execution proceedings and as held in the case of Jagdishwar Dayal Singh 12 Pat. 626: (A. I. R. (20) 1933 P. C. 122) and the decisions of this Court referred to above the entire sale was void. 13a. Mr. Chatterji further drew our attention to the case of Ramlal Sahu v. Mt. Ramia 26 Pat. 340 : (A. I. R. (34) 1947 Pat. 454 F. B.). But there the question in controversy was different. Their Lordships in that case held that if there was any irregularity in the service of the notice issued by the executing Court it would not render the sale void. But in the pressnt case all the persona interested in the tenure had not been joined at all in the execution proceedings. Mr. Chatterji also referred us to the Full Bench case of Ajablal v. Haricharan 23 pat. 528: (A. I. R. (32) 1945 Pat. 1 F. B.) and contended that in the Full Bench case their Lordships had held that the sale would not affect the interest of the heirs of the deceased judgment-debtor because the notices had not been served on them and in absence of service of notice under Order 21 Rule 22 Civil P. C. the executing Court would have no jurisdiction to sell. According to his contention as there is no specific rule for service of notice on the heirs of a deceased judgment-debtor in the Chota Nagpur Tenancy Act or the Bengal Bent Recovery Act the sale in the present case cannot be held to be without jurisdiction.( 14. ) But the execution proceedings in the cases of Bamlal Sahu v. Mt. Ramia 26 Pat. 340: (A.I.R. (34) 1947 Pat. 454 F. B.) and Ajablal v. Hari-charan 23 pat. 52a:(A.I R. (32) 1945 Pat. 1 F. B.) had been taken out not before a revenue Court which bad been vested with a limited jurisdiction and as such the decisions in those cases would not govern the facta and circumstances in the present case. Mr. Chatterji further stressed that no specific provision bad been made in the Chota Nagpur Tenancy Act or in the Bengal Rent Recovery Act for service of notice on judgment-debtor personally and as such the sale held in the present case without service of notice on the heirs of Gostho Bihari Goswami was not without jurisdiction Tbe consensus of opinion in the decided cases of this Court as well as of the Privy Council on the other hand is that in order that a revenue Court may have jurisdiction to sell a tenure of holding the execution must be levied against the entire tenure or holding and as against the entire body of tenure holders or raiyats as the case may be.( 15. ) Mr. Chatterji further contended that Section 214 Chota Nagpur Tenancy Act bars the present suit. Section 214 runs as follows :No suit or application shall be entertained by any Court to set aside or to modify the effect of (a) any sale made under this Chapter save under Section 211 Section 212 or Section 213 or on the ground of fraud or want of jurisdiction or (b) an order under Section 212 Sub section (2) or Section 213 Sub-section (2) setting aside a sale.This contention of Mr. Chatterji is answered by the decision of this Court in Manki Kanak Ratan v. Sundar Munda 20 P. L. T. 346 : (A. I. R. (26) 1939 Pat. 225) wherein a Division Bench of this Court held that where all the necessary parties are not joined or represented in the proceedings relating to a sale in execution of a decree for rent Section 211 Chota Nagpur Tenancy Act does not apply and the revenue Court has no jurisdiction to order a sale and consequently Section 214 of the Act does not preclude the civil Court from entertaining a suit to set it aside.( 16. ) The contentions of Mr. Majumdar the learned counsel for the appellant are in my judgment well founded and the sale held by the revenue Court was void and without jurisdiction as against all including the shire of the appellant before this Court.( 17. ) In this view of the matter the cross-objection filed on behalf of defendant l has no merit.( 18. ) The appeal therefore succeeds. The judgment and the decree of the Court of appeal below are modified and the suit of the plaintiffs decreed with costs throughout. The cross-objection filed by defendant 1 fails and is dismissed but without costs.