PRAHLAD CHANDRA DEY Vs. GOBINDA CHANDRA DEY

JUDGEMENT

(1.) THIS revisional application is directed against an Appellate Order allowing an application under section 174 (3) of the Bengal Tenancy Act and setting aside a sale held on 23rd August 1954 in the course of rent execution case No. 933 of 1954, of the Court of Munsif, Bishnupur. The application for setting aside the sale under section 174 (3) of the Bengal Tenancy Act, was filed by some of the judgment-debtors on 10th October, 1955, i. e. , much more than six months after the date of the sale, and the application was therefore prima facie barred by limitation. The applicants however, alleged in their application that the sale proclamation and other processes had been fraudulently suppressed and they had first come to know of the sale on 1st October, 1955, from one Gokul Chandra Pal.

(2.) AT the hearing of the case before the learned Munsif, neither Gokul Chandra Pal nor any other witness was examined to prove fraudulent suppression of the sale proclamation and other processes and the applicants' case as to the date of knowledge. As a matter of fact, it appears from order No. 22 dated 2nd April, 1956, that the applicants abandoned their case under section 174 (3) of the Bengal Tenancy Act, and only pressed the alternative case that the sale was void in view of section 5b of the West Bengal Estates Acquisition Act, 1953. Section 5b of the Estates Acquisition Act provides that on and from 1st June, 1954, no estate, tenure or under-tenure shall be liable to be sold under the Bengal Tenancy Act, 1885 etc. , and any sale which took place on or after that date shall be void. The case of the applicants was that the property sold in the execution case was a tenure, being recorded in the finally published C. S. khatian as such and therefore section 5b of the Estates Acquisition Act would apply and the sale having been held on 23rd August, 1954, i. e. , after the 1st day of June, 1954, was void.

(3.) THE decree-holder auction purchaser however, contended that though recorded as a tenure in the finally published khatian the jote was really a raiyati holding, and to prove this contention the decree-holder auction-purchaser produced a patta on the basis of which the land had been let out to the judgment-debtors. The learned Munsif held on his interpretation of the patta that the lease of the tank and its banks given by the patta did not create a tenure but only a raiyati holding, it being the admitted case of both the parties that the lease would be governed by the Bengal Tenancy Act and not by the Non-agricultural Tenancy Act.