Dec, 2, GUNENDRA NATH MITRA v. SATISH CHANDRA HUI & Ors.

appeal arises are as follows: . Tonzi No. 2409 of the Mtdnapore Oollectorate con- sis ts of severnl mou?.as incl udiug mouza D iugol. The annual l[l,nd revenue payable in respect of the entire touzi is Rs. 2,892-8-0. This touzi was distributed into two shares, one being a separate account bearing No. 24l1/l and the other being the residuary share. Both these shares came in course of time to be held by a single person, viz., Jiban Krishna Ghosh and from him they devolved upon his two sons, Sudhir Krishna Ghosh and Sunil Krishna Ghosh, defendants 2 and 3 in the present snit. Both the two accounts were recorded in their names as joint proprietors. Under touzi No. 2409 there was a patni which in cluded monza Dingo!. In the year 1885 Kritibas Hui purchased a share of the said patni. His father Ram nath Hni purchased some- transferable occupancy ryoti lands under the said patni. These lands are described in schedule " Ka" of the plaint. Kritibas Hni, while he was a co-sharer patnidar, purch:tsed some transferable ryoti lands under the patni describ ed in schedule" l\ba" of the plaint. Kritibas Hui died in the year 1906 or 1907 and his father Ram nath died in tbe year 1908 or 1909 soon after the deatb of his son. On tbe death of .Kritibas Hui, the plaintiffs, four in number, being his sons and nepbews, inherited the patni and the other properties left by him. Subsequently on the death of Ramnath, the plaintiffs while they were co-sharer patnidars, inherit- ed the aforesaid transfernble occupancy ryoti lands under the patni purchased by Ramnath. Occupancy' ryoti lands in schedule " Ga" of the plaint were purchased by the plaintiffs by different kabalas' on different dates, after they had inherited the lands mentioned in schedu Jes "Ka " and "Kha" of tho plaint. Similarly the niskar lands mentioned in schedule" Gha" of the plaint were purchased by ../ . , ., - S.C.R. SUPREME ooUkT REPORTS 279 the plaintiffs after they had taken the inheritance of their fath~r and grandfath, er. By t?~ same process 0,,,,,.~~ra Nath they acqmred the mokarran maurash1 mterest under the Bahali niskar lands of Bree Ishwar Dwar Basuli Thakurani mentioned in schedule " Una" annexed Satish Ghaiidra to the plaint. !IIiti-a 1952 v. Ifoi and Others. On the 22nd April, 1938, by a registered kabala the plaintiffs sold their interest in the patni to one Maha}anJ Upendranath Pal. Upendranath Pal thus became the patnidar of the six anna share that was held by the plaintiffs prior to the year 1938. The rest of the interest in the patni which had been acquired by Satish Chandra Hui, respondent No. 1, was also sold to one Gouranga Sundar Das Gupta along with Upendranath Pal. The plaintiffs thus ceased to have any interest in the patni and remained in possession of the lands in the status of· occupancy ryots or under-. · tenure holders. When the plaintiffs in the year 1938 sold their patni interest they were heavily indebted to their landlords Sndhir Krishna Ghosh and Sunil Krishna Ghosh for arrears of patni rent. On the 25th March, 1939, the landlords filed a suit claiming a sum of Rs. 16,835-3-6 as arrears of rent due to them from April, 1935, to March, 1939, in the court of the sub ordinate judge of Midnapore against the recorded patnidars (viz., the plaintiffs) without recognizing this suit was the transfer made by them. pending, the landlords failed to pay the March kist of the revenue and cesses of the touzi in both the accounts, with the result that both the undivided half f'lhares of the tom1i represented by separate account No. 1 and by residuary account were adYertised for sale on 24th June, 1939, under section 6 of the Bengal Land Revenue Sales Act (XI of 1859). The notice advertising the sale is Ex. H. It notified sale of the shares in the estate as such and did not state that the entire estate would be fold. In column 9 of the notification the arrears due from the two shues were entered separately. Both these shares were actually sold on the issue of a single notice and at a 'VVhile 280 SUPREME COURT REPORTS (1953] 1902 G · unen ra . .._va d Mitra single sale and were purchased by defendant 15, the ., th appellant before us. The sale certificate shows that w at was certified to have been purchased by the appellant was the separate account share as also the Satish Chandra residuary share making up between them the totality h . v. Hui andOthers. MaMjan J. of the touzi. h n t e 9t O h J d d anuary, 1940, efen aut 15 (the appel- laut) in exercise of the rights conferred by section 37 of the Revenue Sales Act as purchaser of an entire estate in the revenue sale served a notice on the mah al expressing his unequivocal intention to annul and avoid all under-tenures including patnis and dar patnis. On the same date he is alleged to have taken possession of some plots of land in possession of under-tenure holders, encumbrance holders and · niskardars. T·he revenue sale held on 24th June, 1939, has led to a crop of litigations. As already stated, the land lords had sued for the recovery of the arrears of rent due from the patnidars, viz., the plaintiffs, before the sale took place. That suit was decreed on the 14th May, 1940. An application was made for execution of the decree on 21st June, 1940, by attachment and sale 9f certain plots in possession of the judgment-debtors. On behalf of the judgment-creditors it was contended that the entire touzi having been sold under the revenue sale, the purchaser had become entitled to annul the tenure under section 37 of the Revenue Sales Act and as a matter of fact had annulled the same and consequently the tenure itself having ex pired, section 168-A of the Bengal Tenancy Act did not apply aud the decree was executable against other properties of the judgment-debtors. This con tention was upheld by the subordinate judge but was negatived in appeal by the High Court, and it was held that the revenue sale was a sale of the shares of the touzi under section 13 of the Revenue Sales Act and the purchaser did not acquire any right to annul the tenures, he not being a purchaser of the entire estate as· such and therefore the patni being in exist ence, the decree-holder could not execute the decree - I l I 1 - .. S.C.R. SUPREME COURT REPORTS 281 for arrears of rent of the patni against other pro- judgment-debtors. perties of Chandra B1ti v. Sudhir Krishna Ghosh (1), decided in February, 1942, during the pendency of the present suit). The appellant was not a party to those Satish Chandra. proceedings. (Vide Satish 0 u>1 ~i;;a v. •-,;-Natl ' 1952 Hu• and Oth•ri. For the second time the question whether at the same revenue sale defendant 15 purchased the entire Mahajan J. estate or two separate shares only arose in a case wherein he was impleaded as a party. Bimal Kumar Hui and another brought a suit some time in the year 1941 for rent-free establishment of title in certain lands and for confirmation of their possession. The present appellant was impleaded as defendant 2 in the suit as purchaser of the touzi and as claiming to have annulled the plaintiffs' interest. Defendant 2 pleaded that an entire touzi had been purchased by him at the revenue sale and he had thereafter annulled the interest held by"the plaintiffs and they were disentitled to relief as they had no subsisting interest in the plots of land claimed by to the High them. This plea was negatived up Court and the plaintiffs' suit was decreed. (Vide Gunendranath Mitra v. Bimal Kumar Hui (9 ) decided in September, 1948). Harries C. J. and Chakravarti J. in a very well considered and reasoned judgment reached the conclusion that the revenue sale in favour of the appellant was a sale of two separate shares under the provisions of section 13 of Act XI of 1859 and not of the entire estate and that he had not acquired the right to annul the encumbrances under section 37 of the Revenue Sales Act. 'rhe third occasion on which the effect of the revenue sale held on 24th June, 1939, came up for consideration by the High Court arose in the suit which has given rise to the present appeal. On the 28th June, 1941, the plaintiff-respondents, Satish Chandra Hui and others, instituted title suit No. 30 of 1941 for a declaration of title and confirmation of possession of certain plots of land in the court of (1) (1942) i6 C,W,N, ~io, (2) (1949) 5~ C,W,N, -t28, 282 SUPREME COURT REPORTS [1953] ' · t ] d d d' 11"i l ' 195• -d- , m"" ra 1'ath G ~fitra v. the subordinate judge of Midnapore. There was the usual preliminary skirmish between the parties ante- ce en to t 10 sutt, resu trng m procee mgs un er sec- tion°144, Criminal Procedure Code. Possession of the Satish Cha>1dra paddy crop growing on a number of plots was taken by the District Magistrate and eventually under the ""d Others. orders of the High Court the crop was handed over to defendant 1, an employee of the appellant. In Mahajan J. this suit the present appellant was impleaded as defendant 15. In the plaint it was averred that the plaintiffs were in possession of the plots of land men tioned in schedules "Ka", "Kha" and "Ga" of the plaint as occupancy tenants, that in respect of the lands mentioned in schedules "Gha" and" Una" they had niskar rights and that as in the revenue sale the appellant did not purchase the entire estate he was not entitled to annul the patni and the other tenures or the rent-free grants; and that the plaintiffs having transferred the patni rights to U pendranath Pal which still subsisted, none of the encumbrances could be said to have been extinguished, The appellant pleaded that he was the purchaser of the entire touzi at the revenue sale held on 24th June, 19.39, and had acquired the power to avoid and annul the encumbrances and that by a notice duly published on the 9th January, 1940, he had annulled all under-tenures including the patni and that the transfer of the patni to Upendranath Pal was a benami transaction and that even if it was held genuine, the plaintiffs' rights in the ryoti land had been extinguished as the ryoti rights had merged with the patni 1•ights under section 22 of the Bengal Tenancy Act as it was in force before its amendment in 1928 and that by a sale of the patni to Upendra nath Pal the plaintiffs' rights in those l:inds stood transferred to him and they were not entitled to maintain any suit in respect of those plots. 'rhe trial judge decreed the suit in respect of some of the plots detailed at page 144 of the pap~r-book. The plaintiffs' claim in respect of other lands men ~ione(\ in sche(\q\e" Ga" of the plaint was i\ismisse(\. ,_ \ - S.C.R. SUPREME COURT REPORTS 283 1952 ~ t a 11 d a N·th uncn r h d 1 Mitra v. " R a d h h d Plaintiffs were also given a decree for Rs. 416-4-0 against defendant 1 on account of the paddy of 55! 0 ,, " Rh ,, big has of the land out of sc e u es . and" Ga", to which they had proved their title and of which they were entitled to recover khas possession. Satish Oh_"ndra It was held that at the revenue sale the entire touzi Hu< d 'd h and Others. e a acquire no i not pass tot e appe an an right to annul or avoid the under-tenures and en- Mahajan J. cumbrances, that the ryoti holdings of the plaintiffs had merged in the patni and had passed to Upendra- nath Pal on the sale of the patni to him on 22nd April, 1938, but that U pendranath Pal had resettled these lands with the plaintiffs and they being settled the ryots of the village had acquired occupancy rights in these plots. The plots of land described in schedule " Ga" were held as not assessed to revenue and that being so, defendant 15 was held not entitled to possession of these niskar lands. · d Defendant 15 preferred an appeal to the High Court against the judgment of the subordinate judge, while the plaintiffs preferred cross-objections. The appeal and the cross-objections were both dismissed by the High Court and the findings of the trial judge were maintained. It was contended before the High Court that the revenue s&le, though held in fact under section 13 of Act XI of 1859, should be deemed to have been held under section 3 and that the appel lant had acquired all the rights of the purchaser of an entire estate. The High Court negatived this con tention and observed that on a plain reading of sec tion 13 the contention could not be sustained, the essential conditions for the exercise of jurisdiction under section 13 being the existence of a separate account or accounts, and the liability of the entire estate for sale for revenue arrears and that both these conditions having been fulfilled in this case, the collector rightly proceeded under section 13 to sell the shares and that the additional provisions men tioned in the second paragraph of the section need only be complied with in cases where there does exist a share from which no airreair is due, H Wl'IS furtl::i~r 37 284 SUPREME COURT REPORTS (1953] G . h h h. Hui h p 1 f held that though the old occupancy _rights of the 1952 -a " ti plaintiffs merged in the patni and passed to U pendra- 1 f h unen ra "" ' a a ter t e sa e o t e patm to 1m, t e act10n M"itra of 'U pendranath Pal in re a Ii-zing the rent from the v. Satish Chandra plaintiffs amounted to a resettlement and that by his action he had conferred a right of tenancy upon the and Others. plaintiffs who being settled ryots of the village Mahajan J. acquired a right of occupancy in all the lands in respect of which rents were realized. This decision was announced by the High Court on the 22nd Febrnary, 1948, and is in appeal before us on a certificate granted by the High Court on 25th August, 1950. . For the fourth time the same question came up for consideration before the High Court after the decision under appeal and the view expressed in its earlier judgments by the High Court was followed. [Vide Gowranga Siindar v. Rakhal Majhi (').] Mr. Ghosh for the appellant argued two points be· fore us: (1) that defendant 15 being the purchaser of an entire estate at a revenue sale had all the rights conferred upon him by section 37 of the Bengal J.Jand Revenue Sales Act, and all under-tenures stood annulled and plaintiffs had no rights in the lands in snit in which they had nci occupancy rights, and (2) that the plaintiffs were not entitled to a decree on the basis of the resettlement of land, which case was never made out by them, and which was inconsistent with the pleadings and evidence and that on the facts proved there could not be any legal inference of resettlement. In our opinion, neither of these contentions is well founded. . Section 6 of Act XI of 1859 authorizes the Collector after the latest day of payment fixed in the manner prescribed in section 3 of the Act has expired, to issue a notification specifying the estates or shares of estates which have to be sold for recovery of arrears of revenue, and further authorizes him to put up to public auction on the da, te notified for sale, the estates or (•) (19_;1) 55 C,W.)« 66, .. / _, 1 I I s.c.R. SUPREME COURT REPORTS 285 v. 1952 d "t" shares of estates so specified. The contents of th,e notifi- cation issued for the sale in question in unambiguous G terms indicate that two separate units of the estate une;i;r: "'a" from which separate items of arrears were due were notified for sale. No entry was made in the notification Satish Chandra in the column meant to be filled in when the entire Hui estate is to be put up for sale. In the face of these facts and Others. it was conceded by Mr. Ghosh that the sale in fact Mahajan J. took place as provided for in section 13 of Act XT of 1859 and what was actually put up for sale were two separate shares in the estate which made up the totality of the estate. 'rhe learned counsel, however, contended that the sale should be deemed to have been of an entire estate, as both the shares sold con- stituted the totality of the estate and because section 13 could have had no application to a case wherein both the accounts were in default, the section having application only in cases where there at least exists a share that is not in default and which needs protec- . tion against the default of the other cosharers. This 'ro hold argument, though attractiYe, is fallacious. that a sale, which in fact was of two different accounts, is to be deemed to be a sale of the entire to converting a estate would be tantamount 'rhe into a fiction by a notification under section the Col lector must, in our opinion, be considered as conclu sive on the point as to what the subject-matter of the sale was, i.e., whether what was sold was the entire estate or two shares. The appellant is really on the horns of a dilemma. If the contention of his learned counsel that the sale by the .Collector of shares of the estate was not authorized by section 13 is taken seriously, the sale would then be a nullity as under none of the provisions in the Revenue Sales Act such a sale could be held in the manner adopted and the appellant would have no title under it whatsoever; if such a sale is authorized by section 13 of the Act, then it gives him no rights to annul the under In either eYent be cannot resist the plaint tenures. In our judgment, it has been rightly held iffs' suit. judicial verdict. issued by -- 286 SUPREME COURT REPORTS [1953] 195• - " G 1 unendra .. at. Mitra v. in the courts below that the appellant at this revenue sale did not become the purchaser of the entire touzi as sue an to t e pnv1 eges co\lferred on such a purchaser by the provisions of ecome en 1 e t'tl d d d'd 1 no . ·1 t b h h Satish Chandra section 37 of Act XI of 1859. Hui The contention of Mr. Ghosh that the provisions and Others. of section 13 are not attracted to a case where all the Mahajan J. shares in an estate are in default and that in that event the only authority that the Collector has is to put up for. auction the entire estate is again, in our opinion, not well founded. Before the Revenue Sales Act was passed in 1859 estates were being put up for sale for arrears irrespec tive of the question whether the majority of the cosh'arers had deposited their shares of the revenue or whether the amount due was large or small. The cosharers who had paid their shares within the due date were affected seriously by such sales. Provision was therefore made in 1859 for affording protection to the cosharers who were willing to pay and had paid their share of the revenue. On the application of the parties the Collector began to keep a record of separate accounts in the names of the different co sharers. The liability of the entire estate for the total amount of revenue was not in any way affected by this arrangement. The only privilege given was that if the cosharers had got separate accounts open ed in the collectora te the revenue apportioned for the particular cosharers would be receivable by the Col lector. At the ·initial stage the shares belonging to such of the cosharers who duly paid the amount al- lotted in their share would not be put up to sale even if there be a default on the part of one or more of the other cosharers. Only the defaulting separate ac- counts would be put up to sale in the first instance. If the Collector found that the total amount of the revenue in arrears was not realizable from such sale, he would thereupon stop the sale of the ·defaulting share and give notice that the entire estate would be put up to sale. The paramount consideration govern- ing the whole of this Act is to preserve intact the y- -. -

8.0.R. SUPREME COURT REPORTS 287 .._, ultimate security of government for the revenue demand aaainst the estate. By permitting the open- a ing of separate accounts the Act seeks to give record- ed sharers of a joint est9,te an easy means of prote.ct· ing their shares from sale for the default of their Satish Chandra cosharers, but there is no ultimate protection if the government demand is still unsatisfied. Even in cases where all the shares are in default, this protection Mahajan cannot be denied because the amount of arrears due from them may be different sums of money. 1952 -a- ., tL unen ra .ua ,,, Mitra Bui and Othors. v. . Sections 13 and 14 of the Act on which the argu- ment rests are in these terms: '

#13. "Whenever the Collector shall have ordered a separate account or accounts to be kept for one or more shares, if the estate shall become liable to sale for arrears of revenue, the Collector or other officer as aforesaid in the first place shall put up to sale only that share or those shares of the estate from which, according to the separate accounts, an arrear of revenue may be due. . In all such cases notice of the intention of exclud ing the share or shares from which no arrear is due shall be given in the advertisement of sale prescribed in section 6 of this Act. The share or shares sold, together with the share or shares excluded from the sale, shall continue to constitute one integral estate, the share or shares sold being charged with the sepa rate portion, or the aggregate of the several separate portions, of jama assigned thereto."

#14. "If in any case of a sale held according to the provisions of the last preceding section the high est offer for the share exposed to sale shall not equal the amount of arrear due thereupon to the date of sale, the collector or other officer as aforesaid shall stop the sale, and shall declare that the entire estate will be put up to sale for arrears of revenue at a future date, unless the other recorded sharer or sharers, or one or more of them, shall within ten days pur chase the share in arrear by paying to the Provincial Government the whole arrear due from such share. 288 SUPREME COURT REPORTS [1953] d d l' 1952 - Gunendra Nath J.fl ~ ra If such purchase be completed, the Collector or other officer as aforesaid shall give such certificate or .m sec- tioos 28 and 29 of this Act to the purchaser or Satish Chandra purchasers, who shall have the same rights as if the share had been purchased by him or them at the sale. · e 1very o. possess10n as are prov1 e Hui and Oth~rJJ. ·d d f f · 11fahajan J. If no such purchase be made within ten days as aforesaid, the entire estate shall be sold, after notifi cation for such period and publication in such man ner as is prescribed in section 6 of this Act." The concluding words of section 14 furnish a key to the construction of these sections. When a con tingency arises in a case, where two separate accounts have been kept, to sell an entire estate, a fresh notifi cation has to issue in accordance with the provisions of section 6 of the Act notifying that the entire estate is for sale. In the absence of such a notification a sale of an entire estate is not authorised in such a case. Section 13 thus empowers the Collector where separate accounts. are kept, to sell the shares in default as such, there being no scope for the opera tion of parngraph 2 of the section where all the shar '.!.'here is nothing in that section ers are in default. which disentitles the Collector where two separate accounts have been kept and both of them are in default, to notify for sale the separate accounts for recovery of arrears due from each of thil'm separately, or to bring several defaulting shares to sale all at once without following the procedure laid down in section 13. If the Collector proposes to sell the entire estate, where there are several accounts, the first step he has to take is to close the separate account or accounts or merge them into one demand and the· next step would be to issue a notification for sale of the entire estate under section 6 and it is only when the Collector has followed this procedure that he would have authority to bring to sale the entire estate and not otherwise. In this case no such thing was done. The demands against the two shares were not µierged into one item and the entire estate could not S.C.R. SUPREME OOURT REPORTS 289 1952 . It could .only be be sold for two separate demands. notified for sale for recovery of a single sum of a . arrears due from the entire estate. In our Judgment, therefore, it is not right to hold as was contended oby Mr._ Ghosh that a sale for arrears of revenue is not a Satish Chandra sale under section 13 unless there is a share from which no arrear is due and unless a notice of the intention of excluding that share is given in the advertisement of sale under section 6 of the Act that that share is excluded from sale. -a " 11 unen ra .LVa Mitra v. Hui and Othero. Mahajan J. • i .. The second point of Mr. Ghosh that no inference should have been drnwn in this case that the lands in suit were resettled by the purchaser of the patni on the plaintiffs is also without force. The facts from which an inference of resettlement has been drawn by the courts below were alleged in the plaint and on those facts such an inference could be justifiably raised. 'l'he plaintiffs had been paying rent to the purchaser of the patni on the land in their possession and this was accepted by the purchaser as if they were his tenants. In those circumstances the absence of a specific pleading as to resettlement could not in any way be said to prejudice defendant 15's case. U pendranath Pal having treated the plain tiffs as tenants, defendant 15 has no right to question their interest and it must be held that their claim was rightly decreed in the courts below to the extent that they were able to establish it. rl'he appeal before us was limited to the plots of land which were not covered by the sanads or regard ing which plaintiffs had not been able to prove that In view of our find they were occupancy tenants. ings, however, the appeal even as regards those plots has no merits. For the reasons given above the appeal fails and is dismissed with costs. Appeal dismissed. Agent for the appellant: Sukumar Ghose. Agent for respondents Nos. 1, 2 (b) & 15; S, 0. Banner/ ee, •