ISHWARI PRASAD SINGH Vs. KAMESHWAR SINGH, BAHADUR

JUDGEMENT

(1.) The plaintiffs appeal from a decree of the High Court at Patna dated 11 April 1940, dismissing their suit..Respondents 2 to 11, or their predecessors, held a permanent mukarrari interest in certain villages in the district of Gaya as tenure-holders under the Maharajadhiraja of Darbhanga, herein called "the landlord." By an instrument dated 21 June 1915, this interest was mortgaged by them to the plaintiffs, who obtained a preliminary mortgage decree for Rs.1,76,608 on 2 August, 1932, and a final decree for sale on 15th February 1934. The plaintiffs purchased the interest of the tenure-holders at the mortgage sale held on 15th January 1935, and were put in formal possession on 7 November 1935. The order confirming the sale is not before their Lordships, nor is its date mentioned in the order for delivery of possession, but it is said in the landlord's memorandum of appeal to the High Court to have been made at some date after 25 September 1935. When the sale had been confirmed, the property passed with effect from 10 January 1935, under S.65 of the Code. . See ('40) 27 AIR 1940 Pat 692.

(2.) Meanwhile in September 1934, the landlord began proceedings under the Bihar and Orissa Public Demands Recovery Act, 1914, against the tenure-holders to recover arrears of rent and cesses for the years 1339 to 1311 Fasli. These proceedings came to be numbered certificate Case No.1009 of 1934-35. On 1st November 1934, the certificate was filed by the certificate officer and notices thereof under section 7 of the Act were by 27 November 1934, served on all the persons named therein as debtors except one who had died and whose heirs were not served until 9 January 1935. It would appear that in February a March, the certificate was formally amended so as to substitute the names of the heirs for that of the deceased, and fresh notices were served on all the parties. In May 1935, objection was taken to the certificate on the ground that it had included two distinct tenures as one tenure. This objection was rejected by the certificate officer and the Collector, but the matter was pending before the Commissioner when on 26 September 1935, it was compromised. It was agreed by all the parties to the certificate that there were two tenures; that of the sums paid on account, Rs. 948 should be credited to the first and Rs. 1250 to the second; that the total amount remaining due on the first was Rs.1284, and this being now paid, the first was wholly discharged from the debt and was no longer to be included in the certificate proceedings. The other tenure was to be put up for sale for Rs.7699. All objections regarding service of notice were waived by the certificate debtors interested in this tenure. Thereupon the certificate officer at first thought that a fresh certificate case should be begun; but he altered this opinion on further reflection, and on 27 November 1935, directed the issue of a notification of sale, fixing 6 January 1936, as the date of sale.

(3.) This brought the plaintiffs on the scene. On 7 December 1935, they filed a petition objecting to any s3. ale being held on the ground that the interest of the tenure- holders had now become vested in the plaintiffs by the mortgage sale of 15 January 1943. They alleged that the compromise above referred to was fraudulent and collusive, and put forward technical arguments to the effect that the sale would not be a rent sale so as to pass the tenure, but would only take effect upon the right, title and interest of the certificate debtors-an interest which no longer subsisted. This result was said to follow from the fact of the plaintiffs' purchase: also because only a part of the tenure mentioned in the certificate was being sold, and because one or more of the original certificate debtors had died before the original certificate was filed. These objections were answered in a "report" made by the manager of the Darbhanga estate, who contended that the plaintiffs, having purchased the tenure, were bound to pay the arrears of rent thereon, which were a first charge on the tenure. The certificate officer on 14 December 1935, dismissed the objection petition, but, on 18th December, the plaintiffs presented another petition asking for a review of the order of the 14th, insisting that service of the notice of the certificate was made on some of the certificate debtors after 15 January 1935, the date of the mortgage sale; and that the compromise had split up the tenure; hence that the certificate could not operate as a rent decree. This petition has not been included in the record before the Board, but is mentioned in the order sheet of the certificate proceedings. In the plaint it is called a "petition to review." On 18 December the certificate officer recorded an order on this petition: "Let the decree-holder satisfy me on the points raised by the applicants, because these points should be determined at the very outset." He appointed 4 January 1936 to go into the matter, and on that date adjourned it till 6 January for want of time.