AMRIT WAMAN DALAL Vs. MAHADEO LAXMINARAYAN SHRAOGI

JUDGEMENT

(1.) THE plaintiff sued on a mortgage, dated 13th May 1918, and obtained a decree on its basis by compromise. Later on, however, it was found that there were arrears of land revenue for 1931-32 and 1932-33 payable in respect of the field that was given to the plaintiff by compromise and the Revenue Officer took steps to put the property to sale for realization of the land revenue, and the plaintiff deposited Rs. 124-9-6 to avoid the sale and instituted the present suit against the defendants who were in possession for the years 1931-32 and 1932-33 for recovery of the amount alleging that it was primarily the duty of the defendants to pay this revenue to Government and as they failed to pay the same the plaintiff was called upon to pay and the plaintiff was therefore entitled to be reimbursed. The lower Court dismissed the suit holding that the plaintiff was not entitled to reimbursement and that Section 69, Contract Act, did not apply to the facts of the present case. Section 69, Contract Act, reads as under: A person who is interested in the payment of money which another is bound by law to pay and who therefore pays it is entitled to be reimbursed by the other.

(2.) THE question therefore is as to whether the plaintiff is a person who is interested in the payment of the money which another, meaning the defendants, is bound by law' to pay and therefore entitled to reimbursement. In a recent decision reported in Mt. Mula Bai v. Balakdas (1938) 25 AIR Nag 459 Niyogi J. laid down that a person is entitled to invoke Section 69, Contract Act, if he was interested in making the payment notwithstanding that he was also legally liable to pay. He therefore stated with reference to the facts of that case, namely that a mortgagee of malikmakbuza land who has obtained possession thereof as a purchaser in execution of his mortgage decree is entitled to sue his mortgagor under Section 69 of the Act for the amount paid by him to save the land from being sold in execution of a decree for arrears of revenue of the land, even though he was also liable to pay the amount as the arrears of revenue were a charge on the land subject to which it was purchased by him. This case was not noticed by the lower Court which has decided the case in dispute. Under the Berar Land Revenue Act Section 131 the land revenue assessed on any land shall be the first charge on that land and on the crops, rents and profits thereof. Under Section 132, Clause 1, it is stated that the following persons shall be primarily liable for the payment of land revenue assessed on a holding: (a) In an occupant's holding the occupant thereof; (b) in a holding consisting of alienated land, the superior holder thereof and his cosharers; (c) in a holding consisting of land leased from the Crown, the lessee thereof.

(3.) READING these Sections together it could not be disputed that the defendants in the case who were in possession of the holding and were the occupants thereof in the years for which arrears remained unpaid were the persons who were primarily liable for the land revenue and were defaulters with-in the meaning of Section 135, Land Revenue Act. Under Section 141, Berar Land Revenue Act, the Deputy Commissioner may recover an arrear of land revenue by any one or more of the following processes, viz. (a) by service of a written notice of demand on the defaulter; (b) by attachment and sale of the defaulter's moveable property; (c) by attachment and sale of the holding on which the arrear is due; (d) in the case of an arrear recoverable as an arrear of land revenue, by attachment and sale of the defaulter's immovable property; (f) in the case of alienated holdings consisting of entire villages or shares of villages, by attaching and taking such holding under management.