UCHIT LAL MISSER Vs. RAGHUNANDAN TEWARI

JUDGEMENT

(1.) This second appeal was in the first place heard by Macpherson and Dhavle, JJ., who considered that it raised a point of importance and they doubted the soundness of an earlier decision of this Court. They therefore referred it to a Fall Bench. The facts are as follows: The respondents first party brought a suit at Bhagalpur on a simple mortgage bond, dated 13 October 1919, by which the defendants-appellants mortgaged to them two areas of land: the one in the Santal Parganas and another in the Bhagalpur District. We are concerned only with that portion of the mortgaged land which lies in the Santal Parganas. It was described in the mortgage-deed as lakhiraj and was so recorded in the Record-of-Rights at that time in force. In 1926 the new Record-of-Rights of the Santal Parganas was published and the entry relating to the land in question was altered. Under the column headed "Name of the tenant" are given the words as against one plot "Brahmottar raiyat Uchit Lal Misser and Dayanath Misser" and against the other plot "Brahmottar raiyat Kartik Misser, son of Gopal Misser, and Uchit Lal Misser and Dayanath Misser."

(2.) Although some argument appears to have taken place before the learned Judges, who first heard this case, the facts are not now in dispute and the land with respect to which these entries are made is identical with the land mortgaged. The mortgagees obtained an ex-parte mortgage decree in the Court of the Subordinate Judge of Bhagalpur and sought to put the land in dispute to sale. An objection was taken in the executing Court that by reason of Section 27 of the Santal Parganas Settlement Regulation of 1872, the executing Court had no power to put up the land for sale. The objection was overruled, and the question before us is whether the executing Court was precluded by the Regulation mentioned from selling the land and transferring it to an auction-purchaser.

(3.) The Regulation in question is as follows: 27(1) No transfer by a raiyat of his right in his holding or any portion thereof, by sale, gift, mortgage, lease or any other contract or agreement, shall be valid unless the right to transfer has been recorded in the Record-of-Rights, and then only to the extent to which such right is so recorded. (2) No transfer in contravention of Sub-section (1) shall be registered, or shall be in any way recognized as valid by any Court, whether in the exercise of civil, criminal or revenue jurisdiction. (3) If at any time it comes to the notice of the Deputy Commissioner that a transfer in contravention of Sub-section (1) has taken place, he may, in his discretion, evict the transferee and either restore the transferred land to the raiyat or any heirs of the raiyat who has transferred it, or resettle the land with another raiyat according to the village custom for the disposal of an abandoned holding: Provided: (a) that the transferee whom it is proposed to evict has not been in continuous cultivating possession for 12 years, (b) that he is given an opportunity of showing cause against the order of eviction, and (c) that all proceedings of the Deputy Commissioner under this section shall be subject to control and revision by the Commissioner.