AMBIKA BHAWANI DEVI Vs. CHANDRIKA SINGH

JUDGEMENT

(1.) This is a Letters Patent Appeal by the defendant on grant of leave under Clause 10 of the Letters Patent by the learned Single Judge who decided the connected Second Appeal. The facts may be taken from the judgment of this Court. Late Rai Bahadur Kedar Nath and three others were proprietors of eight annas share in Mahal Mordih Kalaunde bearing Tauzi No. 3195/1 in pargana maher, Thana Fatehpur in the district of Gaya. They were recorded as such in register D. The Mahal comprised of four villages. On 13-1-1947 the Tauzi (which, hereafter in this judgment, will mean the eight annas share of the recorded proprietors in the Mahal) was sold for arrears of land revenue by the Collector of Gaya and was purchased by the plaintiff respondent. After confirmation of the sale, he took delivery of possession on 26-9-1947. Plaintiff's name, however, was not recorded in register D. Arrears of cess fell due. In a certificate proceeding started under the Bihar and Orissa Public Demands Recovery Act, 1914 (hereinfater called the Act), the Tauzi was sold for arrears of cess on 28-3-1949. The certificate proceeding in the first instance was started against a dead person but subsequently the heirs of Kedar Nath were substituted in the proceeding. When the property was sold on 28-3-1949, the heirs of Kedar Nath were on the record. Plaintiff, however, was not in the picture at all; at no stage of the Certificate proceeding plaintiff's name was ever shown as a certificate-debtor.

(2.) In the Certificate sale held on 28-3-1949 one Jadunandan Prasad was the auction-purchaser of the Tauzi. By a registered sale deed dated 9-9-1949 he sold the property to the defendant appellant. The Tauzi was again sold on 10-10-1949 for arrears of land revenue; in this sale the auction-purchaser was the defendant's husband. The amount of revenue which was due was about Rs. 120/-. The Tauzi was sold for Rupees 3,500/-. Thus there was a surplus amount to the tune of Rs. 3,380/- approximately. Both plaintiff and defendant applied before the Collector for the payment of the surplus amount, the former claiming that on the date of the revenue sale, i.e., on 10-10-1949 plaintiff was the owner of the Tauzi and was, therefore, entitled to the surplus amount and defendant claiming that she had purchased the property from Jadunandan Prasad who had purchased it in the certificate sale and, therefore, she was the owner of the Tauzi when revenue sale took place and she was entitled to the money. The Collector by his order dated 8-2-1952 held that the defendant was entitled to get the money. Accordingly the surplus amount was paid to her on 14-2-1952.

(3.) The plaintiff thereafter instituted a Miscellaneous case under Section 29 of the Act for setting the sale held on 28-3-1949 aside. The certificate officer by his order dated 3-6-1953, a copy of which is Ext. 8/a in the suit, set aside the sale. Jadunandan Prasad who was the auction-purchaser at the certificate sale filed Certificate Appeal No. 162 of 1953-54 which was dismissed by the Senior Deputy Collector with appellate powers on 13-4-1954; a copy of his order is Ext. 8. It may also be stated here that after setting aside of the sale the plaintiff again went to the Collector for payment of the surplus money but he directed him to seek his remedy in a civil court Accordingly, the plaintiff instituted the suit giving rise to this Letters Patent Appeal on 1-12-1956 for recovery of the surplus money aforesaid with interest.