LOYA MAJHI Vs. NIR DUTTA

JUDGEMENT

(1.) The facts involved in this appeal lie within a very narrow compass and there is no dispute about them. They may be briefly stated here : Loya Majhi, appellant 1 and deceased Bikran, predecessor-in-interest of appellants 2 and 3 of this appeal executed a sale deed in favour of one Bhola Nath Dutt, deceased predecessor of the respondents of this appeal on 19-10-1943, for a consideration of Rs. 250/-. An application for restoration of the land, under the provisions of the Bengal Alienation of Agricultural Land (Temporary Provisions) Act, 1944 was filed before the Sub-Divisional Officer, Jhargram on 22nd February 1945 by the vendors. The application purports to have been allowed on compromise on 3-5-1945 and the sale was converted into a complete usufructuary mortgage terminating on the last date of Chaitra, 1353 B.S. The transferee who was then alive moved the District Judge of Midnapore in revision under the proviso to Section 10 of the above Act for setting aside the order of the Sub-Divisional Officer but was unsuccessful. Against that order, the transferee moved the High Court but the High Court held that it had no jurisdiction to interfere. The judgment of the High Court is reported in the case of -- 'Bholanath Dutta v. Laya Mahji', AIR 1947 Cal 451 (A).

(2.) Thereafter the transferee Bholanath Dutt filed the present suit in the Court of the Munsif of Jhargram for a declaration that the order was not binding upon him inasmuch as the compromise order in question was a fraudulent one obtained in the absence of the transferee by the transferors by practising fraud upon the Sub-Divisional Officer of Jhargram. The transferee died during the pendency of the suit and the present respondents who are his heirs were substituted in his place. The suit was contested by the defendants who are now the appellants before me.

(3.) The trial Court held that in view of the provisions of Section 10, Bengal Alienation of Agricultural Land Act (Act 5 of 1944), the suit is not maintainable and so that Court dismissed the suit. In appeal the District Judge took a different view holding that Section 10 does not exclude the jurisdiction of the ordinary civil court to entertain the suit and so the lower appellate Court remanded the suit for trial on the merits. Against this order the defendants have come up in Second Appeal.