KANIK MANDAL Vs. MEDNI RAI

JUDGEMENT

(1.) This is a plaintiffs Letters Patent appeal from the decision of Manohar Lall, J. in a second appeal arising out of a suit instituted by the plaintiffs to recover possession of 7.82 acres of land appertaining to khata No. 309 in village Nayanagar Karauti.

(2.) The facts are briefly these: The disputed land was the holding of one Chulhai. On 5 September 1933 the holding was sold in execution of a rent decree obtained by the defendants second party, the landlords of the village, and the defendants second party purchased the holding. It may be stated here that in this execution the holding had been sold for arrears of rent due for the years 1335 to 1337. On 8 September 1933, the defendants second party took out a certificate under the Public Demands Recovery Act against Chulhai for the rents of the years 1337 to 1340. On 22 November, 1983 the certificate Court issued a notice under Section 7 of the Act, and this notice was duly served upon Chulhai on 28th November 1933. On 31 December 1933 while the certificate proceedings were pending the defendants second party obtained possession of the disputed land, which they had purchased in the rent execution ease, and on 9 February 1934 they proceeded to settle it with defendant first party. On 3 September 1934 the land was sold in the certificate proceeding and was purchased by the plaintiffs, and on 20 January 1935 the plaintiffs got possession of it through the certificate Court. Afterwards there was a dispute as to possession between the plaintiffs and defendant first party and the latter was declared to be in possession by an order made under Section 145, Criminal P.C. In 1937 the plaintiffs instituted the present suit for a declaration of their title to and recovery of possession of the disputed land. This suit was dismissed by the first two Courts and their decrees were upheld on appeal by Manohar Lall, J. Hence this appeal under the Letters Patent.

(3.) The point, which is raised on behalf of the appellants in this Court, is that the defendants second party, having represented openly and publicly when they obtained certificate on 8 September 1933 that the disputed land belonged to Chulhai and having got the land sold on that footing, are estopped from asserting that the land did not belong to Chulhai, and the defendant first party is also bound by the doctrine of estoppel as their privy or representative in interest. It may be pointed out that on 8 September 1933, the defendants second party had only made an application for a certificate in the certificate Court against Chulhai, alleging that Chulhai owed them rent for the years 1337 to 1340 F. Thus, the only representation which was made by them on that date was that certain rents were due from Chulhai, and a certificate was applied for on that footing. There was no representation to the effect that Chulhai was still in possession of the disputed land. The learned Counsel for the appellants contended that, at any rate, there was such a representation when a notice was issued under Section 7, Public Demands Recovery Act. Section 7 provides that "when a certificate has been filed in the office of a certificate officer, he shall cause to be served upon the certificate-debtor, in the prescribed manner, a notice in the prescribed form and a copy of the certificate." The prescribed form is Form No. 3 of the Act, and it merely prohibits the person against whom certificate is applied for from alienating his immovable property or any part of it by sale, gift, mortgage or otherwise. The effect of the service of notice under Section 7 is stated in Section 8 of the Act, in these words: From and after the service of notice upon a certificate-debtor (a) any private transfer or delivery of any of his immovable property situated in the district, or in the case of a revenue paying estate, borne on the revenue-roll of the district in which the certificate is filed, or of any interest in any such property, shall be void against any claim enforceable in execution of the certificate.