MOIZUDDI BISWAS Vs. ISHAN CHANDRA DAS SARKAR

JUDGEMENT

(1.) This is an appeal on behalf of the first defendant in a suit for recovery of possession of land which the plaintiff-respondent claimed to have acquired free from all incumbrances at a sale for arrears of revenue held on the 21 June 1895. The case for the plaintiff was that the lands now in dispute are included in Taluk Tafazzal Ali which bears No. 1530 on the Revenue Rolls of the Collectorate of Faridpur, that the defendant was in possession without any title and that consequently the plaintiff as purchaser of the estate was entitled to eject him. The defendant resisted the claim substantially on the ground that the lands were not included within the estate purchased by the plaintiff; but that they were part of another estate owned by the defendant himself. The Courts below have concurrently made a decree in favour of the plaintiff.

(2.) The first defendant has now appealed to this Court, and on his behalf the decision of the District Judge has been assailed substantially on three grounds, namely, fast, that as the plaintiff is not a certified purchaser under Act XI of 1859, he is not entitled to the benefit of the provisions of Section 37 of Act XI of 1859; secondly, that as the defendant has admittedly held possession of the disputed lands for more than half a century, the suit is barred by limitation, because he cannot be properly treated as an incumbrancer within the meaning of Section 37, and, thirdly, that there is no evidence to show that the disputed lands were included at the time of the Permanent Settlement within the estate purchased by the plaintiff.

(3.) In so far as the first of these points is concerned, the answer must depend upon the construction of Section 37 of Act XI of 1859. Our attention has not been drawn to any judicial decision on the subject, and apparently the question raised before us is one of first impression. The learned counsel for the appellant has argued that the expression "purchaser" in Section 37 means "certified purchaser", in other words, that it is confined to the person who has been declared the purchaser of the estate under Section 22, In answer to this contention, our attention has been invited by the learned Vakil for the respondent to Section 37 where the expression certified purchaser" is not used, and it has been suggested that if the Legislature had intended to restrict the applicability of Section 37 to cases of certified purchasers only, the expression certified purchaser" would have been used instead of the term par-caser." In our opinion, there is considerable force in this argument. No doubt, the use of the expression "certified purchaser" in Section 36 and of the term purchaser" in Section 37 is by no means conclusive, because it is clear that in other sections, for instance, Secs.22, 28, 29 and 30, the intention of the Legislature was to restrict the operation of those provisions to the certified purchaser. But there is a substantial difference between the scope of Section 37 and the sections to which reference has been made. In so far as Secs.22, 28, 29 and 30 are concerned, they clearly raise matters for consideration between the Collector on the one hand and the person declared as the purchaser on the other. Under such circumstances, it is reasonable to hold that what the Legislature had in view was that the Collector should recognize the certified purchaser and him alone. On the other hand, when we consider Section 36, we find that it deals with a case of conflict between the certified purchaser and a person who claims to be beneficially interested; there the Legislature expressly provides that all suits brought to oust the certified purchaser on the ground that the purchase was made for another-person, though by-agreement the name of the certified purchaser was used, shall be dismissed with costs. This section, however, though it places the real purchaser at a disadvantage when he happens to be the plaintiff in a suit for ejectment brought against the certified purchaser, has been uniformly given a restricted interpretation, and it has been repeatedly held that the operation of the section is not to be extended to cases not manifestly comprised within its terms. Finally, when we consider Section 37, it becomes clear that the question, which arises, is raised neither between the Collector and the person declared as the purchaser, nor between the certified purchaser and a person claiming to be beneficially interested, but between the purchaser on the one hand and strangers who claim certain interests in the property on the other. In oases of this class, there is no intelligible principle upon which we may restrict the operation of the section only to suits commenced by the certified purchaser. In fact, Section 37 defines the status of the purchaser and confers upon him a very valuable right, namely, that he acquires, for all practical purposes, the property in the condition in which it was at the time of the Permanent Settlement. This principle is obviously applicable to the real purchaser, no matter who may have been declared as the purchaser under Section 22. In our opinion, there are no good grounds to justify the view that the term purchaser, in Section 37, means the certified purchaser. We may here observe that Section 37 has, in this respect, been always liberally construed, as shown by the case of Narayan Chandra Kansabanik V/s. Kasiswar Roy 1 C.L.J. 579, where the expression "purchaser" in Section 37 was interpreted to include a transferee, a sub-lessee, as also a person who has succeeded to the estate of the purchaser by inheritance. The first ground upon which the decision of the District Judge is assailed must, therefore, be overruled.