KRISHNAPADA CHOUDHURY Vs. ASRAT ALI KHAN

JUDGEMENT

(1.) This is an application under Section 115, Civil P. C., at the instance of one Krishnapada Chowdhury who was the auction-purchaser in a rent sale held on 2-2-52 in respect of a holding recorded in C.S. Khatian No. 92. Opposite party No. 1 Asraf Ali Khan filed an application under Section 174 (3), Bengal Tenancy Act for setting aside the sale which was held on 2-2-52. A preliminary objection was raised in the lower court upon that application on the ground that the applicant there namely opposite party No. 1 Asraf Ali Khan in the present proceedings before this Court had no 'locus standi' to file the application under Section 174 (3), Bengal Tenancy Act. That preliminary objection was, however, overruled by the learned Munsif who held that Asraf AH Khan had 'locus standi' to file the application under Section 174 (3) Bengal Tenancy Act. It is the propriety of this decision that has been called in question before me by the auction-purchaser petitioner. In C.S. Khatian No. 92 the interest of one Monajatennessa Bibi is recorded to the extent of 12 annas, the remaining 4 annas being recorded in the name of her husband Sk. Abdul Bari. Opposite party No. 1 Asraf Ali Khan's case is that upon the death of Monajatennessa and Abdul Bari their son Sk. Yusuf Ali and their three daughters inherited the holding and thereafter Yusuf gave up his share in favour of his three sisters and from those three sisters Asraf Ali Khan purchased the entire, 16 annas share of the holding and upon this Asrafali Khan filed the application under Section 174 (3), Bengal Tenancy Act. His case is that he had made his purchase from the three daughters on 31-32-50 and 20-6-51 i. e., before the rent decree and the subsequent auction-purchase by the present applicant Krishnapada, Chowdhury on 2-2-52 and as such he was entitled to apply under Section 174, Bengal Tenancy Act. On behalf of the auction-purchaser petitioner Krishnapada Chowdhury it has been contended by Mr. Das Gupta that Asraf Ali Khan (opposite party No. 1) is not a person whose interests are affected by the sale within the meaning of Section 174 (3), Bengal Tenancy Act and accordingly he has no locus standi to apply under that provision. Mr. Das Gupta contends that as it is the case of Asrafali Khan in his application under Section 174, Bengal Tenancy Act that he had purchased 16 annas share of the property auction sold, he must be deemed to have set up a title paramount to the judgment-debtors who are certain Mandals who had purchased the entire holding from one Yusuf, son of Monajatannessa Bibi and Abdul Bari and as such his interests cannot be said to have been affected by the sale. Mr. Das Gupta cited in this connection the cases of -- "Asmutunnissa Begum v. Ashruff Ali', 15 Cal 488 (FB) (A) and -- 'Charubala Dei v. Baikuntha Nath Jana', AIR 1939 Cal 419 (B), decided by Edgley J., in 1939. There cannot be any gainsaying the fact that the latter case lends strong support to Mr. Das Gupta's case. Mr. Jana on behalf of the opposite party No. 1 Asraf Ali Khan relies upon the wording of the phrase "any person whose interests are affected by the sale" in Section 174, Bengal Tenancy Act --words which have been construed as wide enough to include not only a proprietary or possessory interest but also other interests such as pecuniary interest -- 'Dhirendra Nath v. Kamini Kumar', AIR 1924 Cal 786 (C), and challenges the correctness of the decision in 'Charubala Dei's case (B)'. In support of his contention, apart from -- 'Dhirendra Nath Roy's case (C)', Mr. Jana has referred to several other cases such as the cases of -- 'Bungshidhar v. Kedar Nath', 1 Cal WN 114 (D), and -- 'Basi Poddar v. Ram Krishna Poddar', 1 Cal WN 135 (E); -- 'Baidya Nath Charan Pandey v. Hemlata Dasi', AIR 1936 Cal 26 (F); and -- 'Bulanda Bashini Dassi v. Pran Gobinda Dhar', AIR 1936 Cal 547 (G).

(2.) The amendment of Section 174, Bengal Tenancy Act by the substitution of the words "whose interests are affected by the sale" has widened the scope of the section and enabled a larger number of persons to take advantage of it. In the present case according to the version of opposite party No. 1 Asraf Ali Khan has purchased before the rent decree against the Mandals the entire holding recorded in C.S. Khantian 92 from the daughters of Mojatannessa Bibi: 'Prima facie', therefore, his interests are affected by the auction sale held on 2-2-52. It is true that neither he nor his vendors were impleaded either in the rent suit or in the execution proceedings and even if it be held that he set up a title paramount to the judgment-debtors, (namely the Mahdals), that cannot, in my opinion, disentitle him to the benefit of Section 174, Bengal Tenancy Act upon the existing wording of that section. It may be that he has other remedies open to him but if he had actually purchased the holding, as is his case, before the decree, it is difficult to understand why he cannot be said to be a person whose interests have been affected by the sale. Moreover, as pointed out by the learned Munsif there may be insuperable difficulties in the way of the present opposite party No. 1 (Asraf Ali Khan) getting relief in a future suit in view of the doctrine of representation as embodied in Section 146A, Bengal Tenancy Act by reason of the fact that he did not give notice of transfer to the present landlords decree-holders. In the circumstances, therefore, I am of opinion that the clear words of the present statute as they occur in Section 174, Bengal Tenancy Act are enough to entitle Asraf Ali Khan to make a deposit under Section 174 (3), Bengal Tenancy Act. It appears to me that adequate stress was not laid upon these words in the judgment of Edgley J., in -- 'Charubala Dei's case (B)', and I ant accordingly unable to follow that ruling. So far as 'Asmutunnissa Begum's case (A)', is concerned, the 'case of Dhirendra Nath Roy (C)', cited before may be referred to for a discussion of the question as to whether any change in law was effected by reason of the change in the wording of Section 311 of the Code of 1882. In these circumstances I am of opinion that the learned Munsif was justified in holding that opposite party No. 1 Asraf Ali Khan had 'locus standi' to prefer the application under Section 174, Bengal Tenancy Act and the Rule must be discharged accordingly with costs.

(3.) It may be observed that a preliminary objection was raised by Mr. Jana on behalf of opposite party No. 1. Mr. Jana's contention was that his revisional application under Section 115, Civil P. C., was not maintainable inasmuch as the order of the lower court holding that Asraf Ali Khan had 'locus standi' to prefer the application under Section 174, Ben gal Tenancy Act was not a final order. It is un necessary for me, however, to express any opinion on this point as the revisional application is being dismissed on merits.