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Jagdishwar Dayal Singh v. Dwarka Singh And Others
Factual and Procedural Background
This is an appeal from a decree of the High Court of Judicature at Patna dated 17 January 1929, which reversed a decree of the Additional Subordinate Judge of Palamau dated 17 December 1925 and decreed the plaintiffs' suit with costs. The appellant (defendant 1 in the suit) is proprietor of the Lokiya Narainpur estate, which includes several villages and khorposh tenure shares. Prior to 1865 an ancestor of the appellant made a khorposh grant to the ancestor of original defendant 2, to defendants 3 and 4, and to Maheshanand (the deceased husband of defendant 5). Defendants 2, 3 and 4 held an 8 annas share in the khorposh subjects and Maheshanand held the remaining 8 annas share.
The plaintiffs in the suit (the contesting respondents in this appeal) are in possession of mukarrari rights in Mauza Maran under leases executed in 1865 in favour of their predecessors-in-title by predecessors-in-title of defendants 2, 3 and 4. About 1910 Maheshanand died leaving a widow (defendant 5), whose name was entered in the Record of Rights completed in 1920 as holder of an 8 annas share, but she did not cause her name to be entered in the landlord's sherishta under S. 11 of the Chota Nagpur Tenancy Act nor did she pay rent to the appellant in respect of the tenure.
In 1919 the appellant brought a rent claim in the Munsif Deputy Collector, Palamau, against defendants 2, 3 and 4 for arrears for 1916–19 and obtained a decree on 26 February 1920. Defendant 5 was not joined in that proceeding. The decree-holder put the tenure up for sale in execution, and the tenure was purchased by the appellant on 15 September 1922; sale was confirmed on 25 October 1922 and a sale certificate was obtained on 7 December 1922 under S. 11 of the Bengal Rent Recovery Act (8 of 1865).
During the execution proceedings some plaintiffs objected that the decree was not a rent decree and that the auction only conveyed the interest of the defendants who had been sued. The Deputy Commissioner sustained that objection, but the Commissioner reversed it and the Board of Revenue upheld the Commissioner's decision, holding the sale to be a sale of tenure under S. 208 of the Chota Nagpur Tenancy Act. In consequence, the present suit was instituted on 2 August 1924 seeking a permanent injunction to restrain the appellant from recovering possession of Mauza Maran from the plaintiffs-respondents.
The Subordinate Judge found allegations of fraud against the appellant to have failed and dismissed the suit (accepting the appellant's contention regarding non-joinder and the effect of S. 11). The High Court reversed that decision and decreed the plaintiffs' suit with costs. The present appeal challenges the High Court's reversal.
Legal Issues Presented
- Whether the failure of defendant 5 (the widow) to have her name entered in the landlord's sherishta under S. 11 of the Chota Nagpur Tenancy Act, and her non-payment of rent, amounted to a forfeiture of her rights so as to permit the appellant to sell the tenure under S. 208 without joining her as a defendant.
- Whether a sale of a tenure under S. 208, Chota Nagpur Tenancy Act, can be validly ordered in a rent suit unless all parties interested in the tenure are joined as defendants or are otherwise adequately represented.
- Whether S. 214 (which limits suits to set aside sales under the Act except in specified circumstances) precludes civil-court interference with the sale, or whether the sale was ultra vires and therefore open to challenge in civil court.
- Whether the decree obtained in 1920 was a rent decree sufficient to authorize a sale of the whole tenure under S. 208, or whether it only attached the interests of the defendants actually sued.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that defendant 5's failure to have her name entered on the sherishta under S. 11, together with the fact that she had not paid rent or been recognized as a tenure holder by the appellant, entitled him to proceed to sale under S. 208 without joining her as a defendant.
- The appellant further challenged the civil Court's jurisdiction to interfere with the sale, relying on S. 214 of the Chota Nagpur Tenancy Act which bars suits to set aside or modify sales made under the Act except under specified sections or on grounds of fraud or want of jurisdiction.
Plaintiffs'/Respondents' Arguments
- The plaintiffs objected during execution proceedings that the decree under which the tenure was put up for sale was not a rent decree and that the auction could only pass the interest possessed by the defendants actually sued, not the whole tenure.
- The plaintiffs were concerned because, under S. 16 of the Bengal Rent Recovery (Under-tenures) Act, the purchaser at an under-tenure sale acquires the tenure free from encumbrances created without the landlord's written consent, and they therefore sought to prevent a sale under S. 208 that would extinguish such encumbrances.
- The plaintiffs maintained (and the High Court accepted) that S. 208 cannot be lawfully applied to sell the whole tenure unless all interested parties are joined, and that the sale in this case was therefore ultra vires of the revenue court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chamatkari Dasi v. Triguna Nath Sardar, (1914) 19 IC 989 | Construction of S. 159, Bengal Tenancy Act; principles regarding representation/joinder in rent suits for sale of tenure. | The judgment of Jenkins, C.J., in this case (which refers to earlier cases) was cited to support the view that the principles developed under S. 159 Bengal Tenancy Act apply equally to S. 208 of the Chota Nagpur Tenancy Act. |
| Chandra Nath Tewari v. Protap Udai Nath, AIR 1914 Cal 611 = 23 IC 105 | Application of the principle (from S. 159 decisions) to sales under S. 208 of the Chota Nagpur Tenancy Act. | Accepted as an authority that the principle requiring representation or joinder of all interested parties applies to S. 208 sales. |
| Profulla Kumar Sen v. Salimulla Bahadur, AIR 1919 Cal 62 = 52 IC 304 | Decision on a related point (appears inconsistent with the above authorities). | The Court described this decision as difficult to reconcile with the earlier cases and stated that it "must be doubted." |
| Doolar Chand Sahoo v. Lalla Chabul Chand, (1878) 6 IA 47 = 3 Sar 885 (PC) | Authority relied upon by appellant (incidental references to sales under tenancy legislation). | The Court observed that the sale in that case was not a sale under the Bengal Tenancy Act 1869 and that incidental references in that case cannot be treated as a considered decision on the present question; hence it does not support the appellant's position. |
Court's Reasoning and Analysis
The court proceeded through the following analytical steps, as reflected in the opinion:
- The court rejected the appellant's contention that failure by defendant 5 to comply with S. 11 (registration in the landlord's sherishta) or to pay rent amounted to a forfeiture of her rights in the tenure. The opinion states explicitly that "No such sanction as forfeiture of rights in the tenure in respect of failure to comply with the provisions of S. 11 is provided by the Act"; the effect of non-compliance is limited by the Act (it only affects the transferee's power to recover rent from under-tenants as provided in sub-S. 4).
- The court agreed with the High Court that a sale of a tenure under S. 208 of the Chota Nagpur Tenancy Act can only be justified if all parties interested in the tenure are joined as defendants in the rent suit, or are sufficiently represented by parties who are joined. The court treated the authorities construing S. 159 of the Bengal Tenancy Act, 1859, as equally applicable to S. 208.
- The court examined the statutory framework. It noted that S. 208 refers to sales in execution "according to the provisions for the sale of under-tenures contained in the Bengal Rent Recovery (Under-tenures) Act, 1865," and that under S. 16 of that Act the purchaser acquires the under-tenure free from certain encumbrances, which underlies the plaintiffs' concern.
- The appellant invoked S. 214 (which bars suits to set aside sales made under the Act except under specified sections or on grounds of fraud or want of jurisdiction). The court analysed S. 211 (one of the exceptions) and concluded that S. 211 contemplates a case where parties interested in the whole tenure have been joined as defendants and a third party subsequently appears claiming an interest; it does not apply where the whole interest was not before the court because an additional interested party should have been joined in the original suit.
- On the question of jurisdiction, the court reasoned that to benefit from S. 214 the sale must first be shown to have been a sale made under Chapter 16 (Ss. 135–229) of the Act and thus within the statutory jurisdiction of the revenue courts. If the revenue court lacked power to order a sale of the tenure because not all interests were represented, then the sale was ultra vires and not a sale made under that chapter.
- The court examined the decree of 1920 and found it to be a decree "on account of arrears of rent and cesses with interest in respect of khorposh held by the defendants" — i.e., a decree apt only to attach the interests of the defendants actually sued, and not a decree sufficient to warrant a sale of the whole tenure under S. 208. Thus the order for sale was ultra vires of the revenue court.
- Because the sale was held to be ultra vires and therefore outside the jurisdiction conferred by Chapter 16, S. 214 did not operate to exclude the civil court's jurisdiction to entertain a suit to set aside the sale or to restrain eviction. The encumbrances on the tenure were accordingly not affected by the challenged sale.
Holding and Implications
Holding: The court advised that the decree of the High Court dated 17 January 1929 should be affirmed and that the appeal should be dismissed with costs. The opinion concludes with the formal result: Appeal dismissed.
Implications:
- Direct effect: The sale purportedly made under S. 208 was held to be ultra vires because all parties interested in the tenure had not been joined; consequently the sale did not affect the encumbrances on the tenure and the High Court's decree in favour of the plaintiffs was to be affirmed.
- Statutory interpretation: The decision clarifies that non-registration under S. 11 and non-payment of rent do not by themselves forfeit the transferee's tenure rights, and that the safeguards and exceptions in S. 211–214 must be read in light of the jurisdictional limits of the revenue courts.
- Precedential scope: The opinion expressly applies decisions construing S. 159 of the Bengal Tenancy Act to S. 208 of the Chota Nagpur Tenancy Act; it also doubts the consistency of Profulla Kumar Sen v. Salimulla Bahadur with those earlier authorities. The opinion did not state any broader rule beyond the direct holdings and statutory interpretations set out above.
Lord Thankerton.-
This is an appeal from a decree of the High Court of Judicature at Patna, dated 17th January 1929, which reversed a decree of the Additional Subordinate Judge of Palamau, dated 17th December 1925, and decreed the plaintiffs' suit with costs. The appellant, who is defendant 1 in the suit, is the proprietor of the Lokiya Narainpur estate, which includes villages Maran, Rouni, Bedra and an 8 annas share of Chowreah. The rule of primogeniture obtains in the appellant's family. At some time prior to 1865 his ancestor made a khorposh grant to the ancestor of original defendant 2, of defendants 3 and 4 and of Maheshanand, the deceased husband of defendant 5. Original defendant 2 died pending suit and his two sons were substituted. Defendants 2, 3 and 4 had an 8 annas share in the khorposh subjects and Maheshanand had the remaining 8 annas share. The contesting respondents in this appeal are the plaintiffs in the suit, and they are in possession of mukarrari rights in Mauza Maran, which forms part of the khorposh lands, under leases executed in 1865 in favour of their predecessors-in-title by the predecessors-in-title of defendants 2, 3 and 4. About 1910 Maheshanand died without issue but leaving a widow, defendant 5. The name of the latter was entered in the Record of Rights, which was completed in 1920, as the holder of an 8 annas share of the khorposh lands, but she did not take any steps to have her name entered in place of that of her deceased husband in the sherishta of the landlord, as prescribed by S. 11, Chota Nagpur Tenancy Act, nor did she pay any rent to him in respect of the tenure.
In 1919 the appellant brought a suit in the Court of the Munsif Deputy Collector, Palamau, against defendants 2, 3 and 4 in the present suit for arrears of rent in respect of the khorposh tenure for the year 1916-19, and obtained a decree for these arrears on 26th February 1920. Present defendant 5 was not joined as a defendant in that suit. In execution of the decree the tenure was put up for sale and was purchased by the present appellant, the decree-holder, on 15th September 1922. The sale was confirmed on 25th October 1922, and on 7th December 1922 the appellant obtained a sale certificate under S. 11, Bengal Rent Recovery Act (8 of 1865). In course of the proceedings under that section for putting the appellant into possession some of the plaintiffs in the present suit took objection on the ground that the decree in execution of which the tenure had been put up for sale was not a rent decree and that what had passed by the auction was only the interest possessed by the defendants called in that suit. The Deputy Commissioner sustained the objection, but the Commissioner reversed that decision, and the Board of Revenue upheld the Commissioner's decision on the ground that the decree was a rent decree and that the sale was a sale of tenure under S. 208, Chota Nagpur Tenancy Act. The present suit was accordingly instituted on 2nd August 1924, seeking a permanent injunction restraining the appellant from recovering possession of Mauza Maran from the plaintiffs-respondents. Though the allegations of fraud against the appellant were held by the Subordinate Judge to have failed, and they have not been persisted in, there can be no doubt that, when he obtained the decree of 1920, the appellant was fully aware of the interest of defendant 5 in the khorposh lands.
In the first place, the appellant maintains that the failure of defendant 5 to have her name entered on the sherishta, along with the fact that she had never paid rent or been recognized by him as a tenure holder, entitled him to proceed to the sale of the tenure under S. 208 without joining her as a defendant. The Subordinate Judge accepted this view and dismissed the suit, but this contention was rejected by the High Court. Their Lordships agree with the High Court. No such sanction as forfeiture of rights in the tenure in respect of failure to comply with the provisions of S. 11 is provided by the Act; such failure only affects the transferee's power to recover rent from his under-tenants as provided in sub-S. 4.
Their Lordships agree with the High Court that in order to justify a sale of the tenure under the provisions of S. 208, Chota Nagpur Tenancy Act, all parties interested in the tenure must be joined as defendants in the rent suit, or be sufficiently represented by parties joined as defendants. In their Lordships' opinion, the cases decided on the construction of S. 159, Ben. Ten. Act, 1859, as regards this point are equally applicable to the construction of S. 208, Chota Nagpur Tenancy Act. In particular, reference may be made to the judgment of Jenkins, C. J., in Chamatkari Dasi v. Triguna Nath Sardar, (1914) 19 IC 989, in which he refers to the earlier cases. The principle of these decisions was accepted as applicable to a sale under S. 208, Chota Nagpur Tenancy Act, in Chandra Nath Tewari v. Protap Udai Nath, AIR 1914 Cal 611=23 IC 105. The decision in Profulla Kumar Sen v. Salimulla Bahadur, AIR 1919 Cal 62=52 IC 304, in which there appears to have been no citation of authority, is difficult to reconcile with the above cases, and must be doubted. The appellant relied on certain passages in the judgment of this Board in Doolar Chand Sahoo v. Lalla Chabul Chand, (1878) 6 IA 47=3 Sar 885 (PC). The sale in that case was clearly not a sale under the Bengal Tenancy Act, 1869, and the present question did not arise for decision; any incidental references to a sale under the Act of 1869 cannot be regarded as a considered decision on the present question. The question of representation does not arise in the present case, for the appellant does not maintain that the defendants joined in the rent suit of 1919 in any way represented the interest of the present defendant 5. There can be no doubt that the sale in the present case purported to take place by virtue of sub-S. 1, S. 208, Chota Nagpur Tenancy Act, which, so far as material, provides as follows:
When a decree passed by the Deputy Commissioner under this Act is 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 Ss. 12, 13, 14 and 15 thereof, shall as far as may be apply to such sale.
It may be noted that, under S. 16 of the Act of 1865, the purchaser at the sale of the under-tenure is to acquire it free from all encumbrances created by the under-tenure holders without the landlord's written consent or ratification. Hence the plaintiff's' concern to get rid of any sale under S. 208. The appellant challenges the jurisdiction of the civil Court to interfere with the sale that has taken place, and bases this contention on S. 214, Chota Nagpur Tenancy Act, which, so far as is material, provides as follows:
214. 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 Act, save under S. 211, S. 212 or S. 213, or on the ground of fraud or want of jurisdiction.
Sections 212 and 213 have no bearing in the present case, but S. 211, which requires consideration, is as follows:
211. (1) If, before the day fixed for the sale of any tenure or holding in pursuance of S. 208, a third party appears before the Deputy Commissioner and alleges that he, and not the person against whom the decree has been obtained, was in lawful possession of, or had same interest in, the tenure or holding when the decree was obtained, the Deputy Commissioner shall examine such party according to the law for the time being in force relating to the examination of witnesses; and if he sees sufficient reason for so doing, and if such person deposits in Court or gives security for the amount of the decree, the Deputy Commissioner shall stay the sale, and shall, after taking evidence, adjudicate upon the claim:
Provided that no such adjudication shall be made if the Deputy Commissioner considers that the claim was designedly or unnecessarily delayed:
Provided also that no transfer of a tenure shall be recognized unless it has been registered in the office of the landlord or sufficient cause for non-registration is shown to the satisfaction of the Deputy Commissioner.
(2) The party against whom judgment is given by the Deputy Commissioner under sub-S. 1 may, at any time within one year from the date of the judgment, bring a suit in the civil Court to establish his right, and if the sale has been held, to have it set aside on payment by him of the amount of the decree.
This section clearly relates to a case where parties interested in the whole 16 annas of the tenure have been joined as defendants, but a third party claims an interest in room and place of one or more of the defendants; it would not apply in the present case, where the whole interest is not covered by the parties joined as defendants, and the party omitted should have been joined in addition. In order to take advantage of S. 214 the appellant must first establish that the sale was a sale made under Ch. 16 of the Act, which includes Ss. 135 to 229, which in effect is a question of jurisdiction. Under Ch. 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 S. 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. This view is confirmed by an examination of the terms of the decree of 1920 for arrears of rent, for the claim decreed is
on account of arrears of rent and cesses with interest in respect of khorposh held by the defendants in mouza Madan, Bidra, Rano and Chareya,
and the decree is thus only apt to attach the interest of the defendants in the tenure, and is no sufficient warrant for a sale of the whole tenure under S. 208. Accordingly their Lordships are of opinion that the jurisdiction of the Court is not excluded by S. 214, as the sale under S. 208 was ultra vires; and that, consequently, the encumbrances on the tenure were not affected. Their Lordships will therefore humbly advise His Majesty that the decree of the High Court of 17th January 1929, should be affirmed and that the appeal should be dismissed with costs.
Appeal dismissed.
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