B RAMMAN LAL Vs. RAGHUNATH SHANKER

JUDGEMENT

(1.) This appeal is directed against an order passed by a special Judge, first grade, in proceedings under the U. P. Encumbered Estates Act (Act 25 of 1934) and arises under the following circumstances. Raghunath Shanker and his minor son, Girish Prasad, the respondents in the present appeal, filed an application under Section 4, U.P. Encumbered Estates Act, before the Collector who, in accordance with the provisions of Section 6 of the Act, in due course, forwarded that application to the special Judge. After the receipt of the application by the special Judge, the applicants filed a written statement on 12 February 1937 containing the particulars enumerated in Section 8 of the Act. In their written statement the applicants alleged that B. Ramman Lal, the appellant in the present appeal, was one of their creditors. The learned Judge then directed the publication and the service of the notices prescribed by Section 9 of the Act. There was however this irregularity that the publication of the notice in the Gazette enjoined by Sub- section (1) was subsequent to the publication and the service of the notices in accordance with the provisions of Sub-section (2) of Section 9. But it is admitted that on 2 March, 1937, notice was served on Ramman Lal calling upon him to file a written statement of his claim. In pursuance of this notice Ramman Lal, on 29th April 1937, filed a written claim. In the claim submitted by him, Ramman Lal denied that he was a. creditor of the applicants and maintained that under two documents, both dated 12 September 1935, executed by the applicants in his favour, three mahals of village Deosas, viz., mahal Surkh, mahal Lakhi and mahal Zard, were leased to him for a period of ten years commencing from 1343 F. On the basis of this allegation he maintained that he was entitled to remain in possession of the three mahals as a lessee for the period reserved by the two leases. He, accordingly, submitted that the mahals could not be attached or sold for the satisfaction of the debts due from the applicants so as to prejudicially affect his rights as a lessee.

(2.) After Ramman Lal had preferred this claim, a notice in accordance with the provisions of Sub-section (1) of Section 9 was published in the official Gazette on 12 June 1937. Thereafter, on 9 April 1938, notice in accordance with the provisions of Sub-section (1) of Section 11 was published, specifying the properties, mentioned by the applicants in the written statement filed by them under Section 8 of the Act, as also the properties specified by the claimants under Section 10 of the Act. Admittedly no fresh claim was filed by Ramman Lal asserting his rights as a lessee within three months of the publication of the last- mentioned notice as required by Sub-section (2) of Section 11. The case was taken up for settlement of issues on 12 September 1938, and, on that date, the counsel for Ramman Lal was called upon to state whether the claim preferred by Ramman Lal was under Section 9 or Section 11(2) of the Act. The counsel stated that Ramman Lal's claim should be treated primarily as a claim under Section 11 and that his claim was that the three mahals referred to above could not be sold or mortgaged until the expiry of the period for which Ramman Lal was entitled to remain in possession as a lessee. The counsel further stated that after the claim under Section 11 was decided, the claim of Ramman Lal, if necessary, might also be treated as a claim tinder Section 9. The Court then passed the following order : "Seen. Let the W.S. filed by these claimants be treated as one under Section 11 of the Act." It is clear from this order that the learned Judge, who was then seized of the case, treated the claim filed by Ramman Lal on 29 April 1937, as a claim under Sub-section (2) of Section 11. The issue that he framed was in the following terms: What were the rights of the claimant Ramman Lal in the zamindari property of mouza Deosasand on what condition is it liable to attachment, sale or mortgage in satisfaction of the debts due from the applicants?

(3.) The claim of Ramman Lal was eventually heard and decided by a Judge other than the Judge who had passed the order and framed the issue quoted above. The learned Judge dismissed the claim of Ramman Lal on three grounds. He held that, if the statement made by Eamman Lai's counsel on 12 September 1938 be treated as a claim under Section 11, "it was manifestly time-barred." Secondly, he held that the claim filed by Ramman Lal on 29 April 1937, was a claim under Section 9 and not under Section 11 of the Act. Thirdly, he held that the position of Ramman Lal under one of the documents was that of a usufructuary mortgagee, and under the other document was that of a mere manager and, as such, Ramman Lal was not entitled to the possession of the three mahals in the capacity of a lessee.