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Radhaballabh v. M.B Ramranvijay Pd. Singh
Factual and Procedural Background
This opinion arises from an application by two persons aggrieved by an order dated 30th April 1945 of the learned Munsif, who rejected their application to set aside a sale and to be restored to possession. The petitioners claimed entitlement to a portion of the holding in suit— the first petitioner by virtue of a kebala from 1911, and the second petitioner as the shikmidar under the first. The landlord had obtained a decree for rent against the vendor of petitioner no. 1, the original raiyat, and in execution of that decree, it was alleged that the judgment-debtor purchased the holding and obtained delivery of possession. The petitioners contended that this delivery dispossessed them, and accordingly filed applications under Order XXI, rule 100 and rule 90 of the Code of Civil Procedure to be restored to possession and to set aside the sale on grounds of irregularity and fraud. They also urged that the sale be set aside under section 173(3) of the Bihar Tenancy Act. The learned Munsif rejected their applications primarily on the basis that the dispossession was not in the course of delivery of possession, and that the application under section 173(3) was barred by limitation as it was filed more than thirty days after the sale.
Legal Issues Presented
- Whether the petitioners were dispossessed in the course of delivery of possession so as to be entitled to relief under Order XXI, rule 100 of the Code of Civil Procedure.
- Whether the application to set aside the sale under section 173(3) of the Bihar Tenancy Act was barred by limitation.
- Whether the petitioners qualify as persons "interested in the sale" within the meaning of section 173(3) of the Bihar Tenancy Act.
- Whether the learned Munsif failed to exercise jurisdiction vested in him by law by incorrectly applying the law of limitation.
Arguments of the Parties
Petitioners' Arguments
- Claimed entitlement to the holding based on a kebala and status as shikmidar.
- Asserted dispossession resulting from delivery of possession to the judgment-debtor.
- Urged that the sale should be set aside under section 173(3) of the Bihar Tenancy Act.
- Contended that the learned Munsif erred in applying the limitation period of thirty days under the Code of Civil Procedure, arguing instead that Article 181 of the Limitation Act governs the limitation period for applications under section 173(3).
- Relied on two Division Bench decisions (Chandrama Rai and Anant Charan Padhan) supporting their contention on limitation.
Opposite Party's Arguments
- Contended that the High Court should not interfere under section 115 of the Code of Civil Procedure merely because the learned Munsif took an erroneous view on limitation.
- Argued that the petitioners had not been in possession since 1911 and thus could not be considered interested in the sale.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chandrama Rai (Division Bench decision) | Application under section 173(3) of Bihar Tenancy Act governed by Article 181 of Limitation Act, not by Code of Civil Procedure’s 30-day limitation. | Supported the view that the learned Munsif erred in applying the shorter limitation period under the Code of Civil Procedure. |
| Anant Charan Padhan (Division Bench decision) | Similar principle as Chandrama Rai regarding limitation period for section 173(3) applications. | Used to justify interference under section 115 of the Code of Civil Procedure in revisional jurisdiction. |
| Brahmdeo Singh | Interpretation of "interested in the sale" as broader than "affected by the sale." | Guided the Court to hold that petitioners claiming ownership interest qualify as interested in the sale. |
Court's Reasoning and Analysis
The Court examined the learned Munsif’s rejection of the application under Order XXI, rule 100, concluding that no relief could be granted against that finding. The Court did not consider the rejection under Order XXI, rule 90 as it was not before them. The critical issue was the learned Munsif’s view that the application under section 173(3) of the Bihar Tenancy Act was barred by the thirty-day limitation period applicable under the Code of Civil Procedure. The Court found this to be an erroneous exercise of jurisdiction, relying on Division Bench precedents which held that Article 181 of the Limitation Act governs such applications, allowing a longer limitation period. The Court further analyzed the status of the petitioners as persons "interested in the sale," concluding that the term is broad enough to include them based on their ownership claims. The Court noted that the learned Munsif had not considered whether the sale should be set aside or whether the petitioners were indeed interested parties, and directed that these issues be reconsidered upon remand. The Court thus set aside the order of the learned Munsif solely on the limitation point under section 173(3) and remanded the matter for fresh disposal in accordance with law.
Holding and Implications
Order of the learned Munsif is set aside on the issue of limitation under section 173(3) of the Bihar Tenancy Act.
The case is remanded to the learned Munsif to dispose of the application afresh on the question of whether the sale is fit to be set aside under section 173(3). The Court’s decision directly affects the parties by reopening consideration of the sale’s validity and the petitioners’ interest therein. No new precedent beyond the clarification of applicable limitation law is established. Costs and hearing fee matters are left to the learned Munsif’s discretion upon disposal.
Manohar Lall, A.C.J:— This is an application on behalf of two persons who are aggrieved by the order of the learned Munsif, dated the 30th of April 1945, by which he rejected their application to set aside the sale and to be restored to possession.
It appears that the two petitioners claimed to be entitled to a portion of the holding in suit, the first petitioner by reason of a kebala of the year 1911, and the second petitioner claiming to be the shikmidar under him. The landlord obtained a decree for rent against the vendor of petitioner no. 1 that is to say the original raiyat and in execution of the decree it was alleged that the judgment-debtor had purchased the holding himself and obtained the delivery of possession. As a, result of delivery of possession the case of the Petitioners was that they had been dispossessed. Accordingly they filed an application under Order XXI, rule 100, Code of Civil Procedure, to be restored to possession. We are informed that an application was also filed under Order XXI, rule 90. Code of Civil Procedure, on the ground of irregularity and fraud in conducting and publishing the sale. At the time of the hearing of the an plication the petitioner also urged that the sale should be set aside under section 173(3), Bihax Tenancy Act.
The learned Munsif held that on the facts and circumstances of this case he could not hold on the uncorroborated statement of the applicant alone that he was in possession of the disputed land at the date of the delivery of possession. He, therefore, thought that the dispossession in this case was not a dispossession in the course of delivery of possession and, therefore, the matter was beyond the scope of Order XXI, rule 100. The learned Munsif was then urged to consider the applicability of section 173(3) of the Bihar Tenancy Act and although he held that the application was maintainable, he took the view that the prayer to set aside the sale must fail on the ground-that the application was barred by the law of limitation inasmuch as it was filed more than thirty days after the date of the sale which took place on the 15th of May, 1944. Hence the application in revision to this Court.
It is impossible to give any relief to the petitioners against the findings of the learned Munsif while rejecting the application under Order XXI, rule 100, Code of Civil Procedure. The question as to whether the application was or was not rightly rejected under Order XXI, rule 90, Code of Civil Procedure, is not before us.
It is however urged on behalf of the petitioner that the learned Munsif failed to exercise a jurisdiction vested in him by law when he erroneously took the view that the application if treated under section 173(3) of the Bihar Tenancy Act was barred by limitation. The learned Advocate is supported in his contention by two Division Bench decisions of this Court—Chandrama Rai and Anant Charan Padhan. In both these cases the learned Judges of the Division Bench of this Court interfered in their revisional jurisdiction under section 115 of the Code of Civil Procedure. In those cases it has also been held that an application under section 173(3) of the Bihar Tenancy Act will be governed by Article 181 of the Limitation Act as it is not an application under the Code of Civil Procedure which would have attracted the operation of a shorter period of limitation of thirty days. In this view the order of the court below on point no. 3 must be set aside because he failed to exercise the jurisdiction vested in him by law.
The learned Advocate for the opposite-party drew our attention to a number of cases in which it has been held that the High Court is not bound to interfere under section 115 of the Code of Civil Procedure where the court merely has taken an erroneous view on a question of limitation and thus either exercised or refused to exercise jurisdiction, to give a proper relief to the party concerned. But as I have already observed, there are two Division Bench cases of this Court where the Court has interfered under section 115 of the Code of Civil Procedure in a matter similar to the present case.
At one time we thought that the petitioners were not the persons, interested in the sale within the meaning of section 173(3) of the Bihar Tenancy Act, but having regard to the reasoning in the case of Brahmdeo Singh we are of opinion, that the correct view to take is that the petitioners who claimed to be the owners of a portion of the holding are interested in the sale as the words ‘interested in the sale,’ appear to be much wider than the words ‘affected by the sale’.
It should also be observed that the learned Munsif has not considered whether this was a fit case in which the sale should be set aside and a re-sale ordered. He has not also considered whether the petitioners are interested in the sale on account of the fact that they had a valid claim to be considered within the category of the expression ‘interested in the sale’, and it was argued on behalf of the opposite-party that as the shikmidar or his settlor petitioner no. 1 has not been in possession ever since 1911 how can they be held to be interested in the sale. This question will be considered by the learned Munsif when the case goes back to him.
For these reasons the order of the learned Munsif is set aside and he is directed to dispose of the application in accordance with law but only on point no. 3, namely whether the sale is fit to be set aside under the provisions of section 173(3) of the Bihar Tenancy Act. Costs of this Court will abide the result and will be disposed of by the learned Munsif. Hearing fee one gold mohur.
Das, J.:— I agree.
K.D
Order set aside.
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