SARAT KUMAR BANERJI Vs. MUNSHI ABDUL BARY

JUDGEMENT

(1.) This was a suit for declaration of title and for recovery of possession of certain lands mentioned in the plaint. I need not for the purpose of our decision specify the lands in detail, but put quite shortly the position was that there was an occupancy raiyati standing in the names of two persons, Golapdi Mallik and Abdul Sattar, at a jama of Rs. 36-3as-17gds. That was a non-transferable occupancy holding. It was mortgaged by way of conditional sale and the mortgage was a usufructuary mortgage. It is conceded that the mortgage was of the whole of the property in question. The plaintiff in the suit was the landlord Sarat Kumar Banerjee and he is the appellant before us. The respondent in this appeal, Munshi Abdul Bari, was the principal defendant in the suit and he was the mortgagee. The other defendants in the suit were the tenants who were the mortgagors.

(2.) It appears that the present plaintiff brought a suit against the tenants for recovery of rent. In that suit he obtained a decree and proceeded to put the decree to execution in consequence of which there was a sale of the holding and at that sale the landlord, that is to say, the present plaintiff, was the purchaser. The sale was duly confirmed and the plaintiff as the purchaser was put into possession of the property. Thereupon the present defendant as the mortgagee filed an objection under the provisions of Order 21, Rule 100, Civil P.C. There seems to have been an investigation as provided for in Rule 100, Clause 2, as a result of which the Court made an order under the provisions of Order 21, Rule 101 and directed that the applicant, that is to say, the present defendant, the mortgagee, was to be put in possession of the property. The present plaintiff thereupon instituted the suit with which we are now concerned, claiming that he had the right to eject the mortgagee and recover possession of the property. The Munsif of the second Court, Arambagh, made a decree in favour of the plaintiff and ordered that he should get khas possession of the lands in question, the defendants being evicted. Thereupon the defendants appealed and the matter came before the Subordinate Judge, Second Court, Hooghly, who reversed the decision of the trial Court on the ground that the mortgage in question was an incumbrance within the meaning of Section 161, Ben. Ten. Act, and that the plaintiff as the purchaser at the auction sale had not given proper notice to annul that incumbrance under the provisions conferred under Section 167, Ben. Ten. Act, in that the plaintiff knew of the mortgage of 12 November 1923 or at any rate when the sale was confirmed on 24 June 1924, and he had not served the notice under Section 167 until 18 August 1925 which the learned Subordinate Judge erroneously computed to be within two years after the confirmation of the sale or more than two years of the date of the knowledge of the plaintiff.

(3.) It is clear that the notice was served after one year, indeed one year two months after the date of the confirmation of the sale. The learned Subordinate Judge was wrong in taking the date of the service of the notice as the terminus ad quem, as Section 167 in fact says that an application in writing must be made to the Collector within one year from the date of the confirmation of the sale or the date on which the purchaser first had notice of the incumbrance, whichever is later. Therefore the proper date to be taken was the date on which the application (on which the notice was founded) was made to the Collector. However if we had to decide the case on this point alone we should probably take the view that as the notice was served on 18 August 1925 the presumption is that the application was made to the Collector within a week or two before the date on which the notice was served. In the ordinary course the Collector in matters of this kind would doubtless take the necessary steps to have a notice served within a week or two of the application made to him. However in the view which we now take of this case it is not necessary that we should further deal with this point.