JOYTI PRASAD SINGH DEO Vs. TARA SANKAR CHATTARJI

JUDGEMENT

(1.) The appellant who is the landlord of village Dumdumi in the Raghunathpur Munsifi of the district of Manbhum, sued the plaintiffs respondents and two others for the cess of a six annas share in the village which these plaintiffs hold. He obtained decree which he executed under Section 208, Chota Nagpur Tenancy Act, 1908, as a rent decree and on sale of the tenancy, purchased it at auction. The suit out of which this second appeal has arisen, was brought by the plaintiffs, the Chattarjis, to set aside the ex parte decree and the sale on the ground of fraud and want of jurisdiction. The Courts below have granted all the reliefs prayed for except that the ex parte rent decree was vacated only in so far as plaintiffs 1 to 3 were concerned.

(2.) The facts found are that the plaintiffs 1 to 3 were minors when they were sued as defendants in the suit in the rent Court, and that accordingly the decree passed in that suit being effective only against some of the persons interested in the tenancy, could not be executed tinder Section 208 of the Act, but at most under Section 210(b) against the major defendants 4 to 8 under which the right, title and interest of those judgment-debtors could be sold by the procedure laid down for execution of a money decree. It has been held by the Courts below that the sale under Section 208 which was a sale of the tenancy, was without Jurisdiction and did not operate to transfer the tenancy or even the right, title and interest of judgment-debtors 4 to 8 which might have been sold under Section 210(b) or indeed anything whatsoever.

(3.) On behalf of the landlord appellant it is urged that the sale in execution of the decree is not void but is binding so far as the interest of the judgment debtors who were defendants 4 to 8 is concerned . In my opinion the submission is wholly untenable The sale under Section 208 was entirely without jurisdiction for the reason already given, that the decree upon the basis of which it was held was against only a part of the tenancy interest, whereas a sale under Section 208 is only valid when held in execution of a decree for the rent of the tenancy obtained against the whole of the tenancy interest. The suggestion that such a sale, though not valid in respect of the tenancy should at least bind the interest of those defendants judgment-debtors against whom the decree for cess was valid, will not bear examination for a moment. The effect of a sale under Section 208, has recently been considered by their Lordships of the Privy Council in Jagdishwar Dayal Singh V/s. Dwarka Singh AIR 1933 PC 122 It was there held that a sale on a decree for rent which did not include the whole tenancy interest was not a sale under Section 208 so as to affect the subordinate interest which were under Section 16, Bengal Rent Recovery (under-tenures) Act, 1865, liable to cancellation upon a valid sale under that section It was further held that neither Section 214 nor any other provision of the Chota Nagpur Tenancy Act, 1908, operated to prevent the civil Court from entertaining a suit in this regard. As the sale under Section 208 was ultra vires their Lordships pointed out that: to take advantage of Section 214 the appellant must first establish that the sale was a sale made under Ch 16 of the Act, which includes Secs.135 to 229, which in effect is a question of jurisdiction, "Under Ch. 16, of the Act", they proceeded, a statutory jurisdiction is conferred on the Revenue Courts, but that jurisdiction must be exercised within the statutory powers conferred. If then, as already stated, it is not competent to order a sale of the tenure under Section 208, unless the whole interests in the tenure are represented before the Court, it is clear that the order for sale of the tenure in the present case was ultra vires of the Revenue Court, and it follows that the sale was not made under this chapter and was outside the jurisdiction of that Court.