JAGDISHWAR DAYAL SINGH Vs. DWARKA SINGH

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Patna, dated 17 January 1929, which reversed a decree of the Additional Subordinate Judge of Palamau, dated 17 December 1925, and decreed the plaintiffs' suit with costs. The appellant, who is defendant 1 in the suit, is the proprietor of the Lokiya Narainpur estate, which includes villages Maran, Rouni, Bedra and an 8 annas share of Chowreah. The rule of primogeniture obtains in the appellant's family. At some time prior to 1865 his ancestor made a khorposh grant to the ancestor of original defendant 2, of defendants 3 and 4 and of Maheshanand, the deceased husband of defendant 5. Original defendant 2 died pending suit and his two sons were substituted. Defendants 2, 3 and 4 had an 8 annas share in the khorposh subjects and Maheshanand had the remaining 8 annas share. The contesting respondents in this appeal are the plaintiffs in the suit, and they are in possession of mukarrari rights in Mauza Maran, which forms part of the khorposh lands, under leases executed in 1865 in favour of their predecessors-in-title by the predecessors-in-title of defendants 2, 3 and 4. About 1910 Maheshanand died without issue but leaving a widow, defendant 5. The name of the latter was entered in the Record of Rights, which was completed in 1920, as the holder of an 8 annas share of the khorposh lands, but she did not take any steps to have her name entered in place of that of her deceased husband in the sherishta of the landlord, as prescribed by S. 11, Chota Nagpur Tenancy Act, nor did she pay any rent to him in respect of the tenure.

(2.) In 1919 the appellant brought a suit in the Court of the Munsif Deputy Collector, Palamau, against defendants 2, 3 and 4 in the present suit for arrears of rent in respect of the khorposh tenure for the year 1916-19, and obtained a decree for these arrears on 26 February 1920. Present defendant 5 was not joined as a defendant in that suit. In execution of the decree the tenure was put up for sale and was purchased by the present appellant, the decree-holder, on 15 September 1922. The sale was confirmed on 25 October 1922, and on 7 December 1922 the appellant obtained a sale certificate under S. 11, Bengal Rent Recovery Act (8 of 1865). In course of the proceedings under that section for putting the appellant into possession some of the plaintiffs in the present suit took objection on the ground that the decree in execution of which the tenure had been put up for sale was not a rent decree and that what had passed by the auction was only the interest possessed by the defendants called in that suit. The Deputy Commissioner sustained the objection, but the Commissioner reversed that decision, and the Board of Revenue upheld the Commissioner's decision on the ground that the decree was a rent decree and that the sale was a sale of tenure under S. 208, Chota Nagpur Tenancy Act. The present suit was accordingly instituted on 2 August, 1924, seeking a permanent injunction restraining the appellant from recovering possession of Mauza Maran from the plaintiffs- respondents. Though the allegations of fraud against the appellant were held by the Subordinate Judge to have failed, and they have not been persisted in, there can be no doubt that, when he obtained the decree of 1920, the appellant was fully aware of the interest of defendant 5 in the khorposh lands.

(3.) In the first place, the appellant maintains that the failure of defendant 5 to have her name entered on the sherishta, along with the fact that she had never paid rent or been recognized by him as a tenure holder, entitled him to proceed to the sale of the tenure under S. 208 without joining her as a defendant. The Subordinate Judge accepted this view and dismissed the suit, but this contention was rejected by the High Court. Their Lordships agree with the High Court. No such sanction as forfeiture of rights in the tenure in respect of failure to comply with the provisions of S. 11 is provided by the Act; such failure only affects the transferee's power to recover rent from his under-tenants as provided in sub-S. 4.