Trilochan Panda v. Dinahandhu Panda

Mullick, J.:— Plaintiffs 1 to 8 are cosharer landlords of Gaontiahi village with defendant 1, who is also the lambardar appointed by Government. It appears that certain tenants surrendered the lands in suit to plaintiffs 1, to 8, and that these plaintiffs thereupon leased the lands to plaintiffs 9 to 12. When that was done defendant 1, the lambardar, applied under Sections 46 and 47 of the C.P Ten. Act, to be put in possession as landlord of the disputed lands. The Revenue Officer allowed the prayer, and the present suit has been brought by the plaintiffs in the civil Court for a declaration that they have a proprietary right in the lands and are entitled to recover them from defendant 1; and in the alternative there is a proposal for joint possession with defendant 1 to the extent of the shares of plaintiffs 1 to 8. The Munsif found that the civil Court had no jurisdiction to entertain this suit by reason of Section 95 of the C.P Ten. Act. The learned Subordinate Judge in appeal was of a contrary opinion and held that the suit was maintainable, and he has remanded it to the Munsif for further hearing. Now Section 35 of the C.P Ten. Act, makes provision for the surrender of holding by a tenant. S. 36 provides that in cases of surrender the next heir of the surrendering tenant will upon application to the Revenue Officer, be entitled under certain circumstances to be put in possession. It is to be noticed that this section makes no provision for surrender by a tenant to a cosharer landlord and or recovery of possession by the remaining landlords. Then Section 46 of the Act provides that when an occupancy tenant sells his holding or makes a gift of it or mortgages it or sub-lets it for a period exceeding one year, or otherwise transfers his rights in the holding or in any portion thereof, every such sale, gift, mortgage, sub-lease, or transfer shall be voidable in the manner and to the extent provided by the section.

2. Section 47 provides that when a transfer is made by an occupancy tenant, contrary to the provisions of S. 46, the landlord from whom the tenant held the land may, on application to the Revenue Officer made within two years from the date on which the transfer was made, be placed in possession under certain circumstances. On behalf of the appellant before us it is contended that he was competent as lambardar to make an application under S. 47, and that the order of the Revenue Officer being final, and no civil suit being allowed by the Act for the purpose of setting aside that order, S. 95 is a complete bar to the present suit. In order to bring himself within the provisions of S. 46 it is necessary for the learned vakil for the appellant to establish that the surrender in this case was a transfer within the meaning of S. 46. Now the transfer contemplated by that section must be either a sale or a gift or a mortgage of a sublease, and the words “otherwise transfer” must be limited to transactions of a similar nature. A surrender is yielding up by the tenant of his rights to a person who is entitled to the immediate reversion or remainder in no sense can it be called a transfer, much less a transfer within the meaning of S. 46. The Act, while it makes provision for the recovery of possession by the hair of a surrendering tenant, makes no provision for such recovery by a cosharer landlord, and to read S. 43 as creating such a right would, in my opinion, lead to an absurd result. For if this section applies then the cosharer who accepts a surrender can only be ejected if he joins in his own ejectment, inasmuch as the word “landlord” in the section means the whole body of joint owners.

3. But then it is contended that the lambardar, representing the whole body of landlords, is entitled to eject, upon his own authority, without the consent or leave of the cosharer who has accepted, the surrender. There is no justification for this contention. So far as the prayer for ejectment is concerned, be it in a suit before a civil Court or an application before a Revenue Officer, the entire body off landlords must be represented and of the lambardar seeks to prosecute such a claim, he can only do so as the agent for the entire body. In the case under consideration he must therefore represent the very cosharer who accepted the surrender in the first instance, and the same absurdity results Moreover, the position of the lambardar has been the subject of judicial authority and it is only necessary to refer to the cases of Nilmani Guntia v. Jogendra Guntia(1), where their Lordships of the Calcutta High Court have ruled that Section 138 of the Central Provinces Land Revenue Act, does not give the lambardar power to eject trespassers from lands or to eject tenants. Section 11 of the Act defines a lambardar as a person appointed in the manner prescribed by the Act to represent the proprietary body of a mahal in its relations with Government.

4. The institution of a suit for ejectment against a purchaser is not one of the duties which the lambardar can be held to have to perform as the representative of the co-sharers. In my opinion therefore it is clear that the lambardar has no authority to represent the cosharers for the purpose of ejectment before the Revenue Officer. The result is that upon the ground that the surrender by plaintiffs 1 to 8 was not a transfer within the purview of Sections 46 and 47 C.P of the Ten. Act, I hold that S. 95 has no application. The order putting defendant 1 into possession was ultra vires, and the plaintiff is entitled to maintain the suit. The appeal is dismissed with costs.

5. Atkinson, J.:— I concur.

V.S/R.K

6. Appeal dismissed.