SITA PARIYAN Vs. RAM DAHIN SINGH

JUDGEMENT

(1.) This appeal on behalf of the plaintiff arises out of a suit for declaration of title and recovery of possession in respect of lands comprised in three plots of khata No. 37 in village Hassanpur. The plaintiff's case is that her husband purchased the land of Khata No. 37 from the defendants 3 to 5 who were original raiyats in respect of that Khata. In the year 1938, defendants 6 and 7, who are landlords, instituted a rent suit against the original raiyats for arrears of rent and got a decree. In execution of that decree, being Execution Case No. 825 of 1941, this Khata was sold and purchased by defendants 1 and 2. The plaintiff's husband was even recognised by the landlord, and yet he was not impleaded in the suit, and as such the decree obtained by the landlord had "the effect of a money decree, & likewise the sale following the foot (sic) of that decree, was a money sale and did not affect the right, title and interest of the plaintiff. The defendants, however, pleaded that the plaintiff's husband was never recognised as a tenant, as also that the decree obtained by the landlord in Rent Suit No. 97 of 1938, was a rent decree and not a money decree, The sale held in execution of the decree was also a rent sale and as such the plaintiff had no right to claim the relief she had asked for. It may be mentioned here that the purchase of the land from the original raiyats by the plaintiff's husband took place on the 14th of July, 1924. The courts below decided against the plaintiff holding that the plaintiff's husband was not recognised by the landlord and the decree obtained by him in the rent suit in question was a rent decree, and so was the sale also held in execution thereof a rent sale, and as such the plaintiff's suit was dismissed.

(2.) Mr. B. C. De appearing on behalf of the appellant in this court has raised two questions of law, one of which is that the omission to make the plaintiff's husband a party to the suit gave to the decree obtained the character of money decree and not that of rent decree, bcause according to the amendment of the Bihar Tenancy Act, which came into force on the 10th of December 1938, the purchase of the plaintiff's husband would be automatically recognised by the landlord, and it is thus clear that although the suit was instituted on the 9th of September, 1938, before the amendment came into force, the property was sold on the 28th of May, 1942 in an execution case started in 1941, and therefore, the sale held would have the effect of a money sale. He cited the case of -- 'Damodar v. Mahangu', AIR 1952 Pat 93 (A), in support of this contention. I think there is no controversy with regard-to the proposition of law propounded by the learned counsel in support of the appeal. But the crucial point to decide is whether the plaintiff's husband acquired a good title so as to claim automatic recognition from the landlord on the date that the sale was held. Looking to Section 26, B. T. Act after the amendment of 1934 and prior to the amendment of 1938, it is no doubt true that Section 26N made it clear that a purchaser who acquired title to a holding prior to 1923 would acquire an indefeasible title and his purchase would be automatically recognised by the landlord. In the present case if the purchase was one by the plaintiff's husband prior to 1923, there can be no doubt that if he was not impleaded in the execution proceedings or in the suit, the decree obtained and the sale held would have the effect of a money decree and money sale. Mr. De, however, contends that although the purchase by the plaintiff's husband was made in the year 1924, under the amendment of the 10th of December 1938, the plaintiff's husband acquired a good title and automatic recognition. I am afraid this contention of the learned Advocate has lost sight of Section 26B of the Act which runs as follows:

(3.) The next point urged is that the plaintiff brought a rent suit in respect of two khatas being khata Nos. 37 and 11 and obtained a decree, in execution of which she purchased the holding. Such a decree, therefore, would have the effect of a money decree. The decree, however, obtained by the landlord is not on the record of this case, nor have we got any other document except the suit register, sale certificate and the fact that there were two execution cases. The courts below held against the plaintiff on the ground that the suit register indicated that there were two khatas with separate rentals mentioned therein for which the suit was instituted, and likewise there were two execution cases. They also relied upon the fact, in particular, of two execution cases on which they mainly based their finding that the decree obtained was a rent decree. I am afraid a clear analysis of the entries in the suit register would not support the findings of the courts below upon the character of the decree obtained. It is no doubt true that column 15 of the suit register mentions khatas 37 and 11 with separate rentals, but it is also clear from column 27 that Execution Case No. 184 of 1941 was dismissed for default. It is Execution case No. 825 of 1941 which led to a sale which ultimately was confirmed and the execution case was dismissed on full satisfaction. From this, if anything, the position remains very doubtful as to how the execution was levied, whether there were two separate execution cases or only one execution case in respect of both. The view of the courts below that there were two execution cases leading to the inference that two cases were started in respect of two holdings also is not supported by column 27 of the suit register. If, therefore, the matter had rested here, Mr. Lalnarayan Sinha could only rely upon the presumption in favour of the landlord that all the procedure of a rent decree and rent sale was followed, and as such it must be inferred that the sale held in execution of the decree was a rent sale. By itself possibly it might have left the position rather obscure, but fortunately the sale certificate which is on the record of the case which has not been referred to by the courts below puts the position beyond doubt. The sale certificate clearly states that the auction purchaser purchased Khata No. 37 only in respect of which a sale certificate was granted meaning thereby that there was certainly an independant sale in respect of khata No. 37 and evidently it must have been for the arrears due in respect of that khata. Mr. De, however, has urged on the footing of the cases reported in --'Hriday Nath Das v. Krishna Prasad', 11 Cal. W.N. 497 (B), and -- 'Bipradas Dey v. Bajaram Bandopadhya' 13 Cal. W.N. 650 (C), that if there is a single suit in respect of two khatas, the decree passed must be deemed to have the effect of a money decree and not a rent decree. Mr. Lal Narayan Sinha, however, has invited my attention to the case of --'Profulla Nath v. Satya Bhusan', reported in AIR 1929 P.C. 171 (D), which is a decision of their Lordships of the Judicial Committee where the view of law expressed in the above two cases came in for consideration, and their Lordships held that the reasoning on which these two decisions rested could not be supported, and they laid down the law on the point different from what their Lordships of the Calcutta High Court stated in '11 Cal W N 497 (B)' & '13 Cal. W. N. 650 (C)'. The relevant passage runs thus: