SHEIKH MUHAMMAD SADDIQ Vs. BABU DURGA PRASAD

JUDGEMENT

(1.) This second appeal arises out of a judgment and decree of the learned District Judge of Gaya, decreeing the appeal, in his Court and dismissing the suit of the plaintiff with costs in both Courts but without costs against the Collector.

(2.) The facts of the case are briefly as follows: A mokarari tenure was sold for arrears of rent and purchased ostensibly in the name of the appellant before us. He applied to the Collector to issue notice to some under-tenure-holders that the incumbrances were annulled. The Collector, being apparently misled by the statement which also appears in the plaint that the property is 8-annas share in a village belonging to the Maharaj Kumar Gopal Saran Narain Singh of Tikari decided that the plaintiff had no power to annul the incumbrances and refused to issue the notice. The plaintiff thereupon brought two suits in the Court of the Subordinate Judge for declaration that he was the purchaser in execution of a decree for arrears of rent of the mokarari tenure and that he had power to annul the incumbrances claimed by the defendants by service of notice under Section 167 of the Bengal Tenancy Act and that the Collector was bound to issue and cause such notice to be served. Neither of the lower Courts could apply Section 45 of the Specific Relief Act to this case, as that only applies to this Court. To that we shall advert presently. The learned Subordinate Judge in the first Court held that the plaintiff had power to annul the under-tenures claimed by the defendants, notwithstanding the fact that he was proved to be the benamidar for the judgment-debtor, one Jawad Hossain. The Court of Appeal below has reversed this finding, although it holds that the Collector was bound to issue notice under Section 167 on the requisition of the person in whose name the sale-certificate stands and has, therefore, given no costs to the Collector, who does not appear in the appeal before us. But he holds that inasmuch as the plaintiff was not the real purchaser he cannot annul the incumbrances.

(3.) The question, as stated by the learned Judge in the Court below, would possibly be not altogether free from difficulty. But whatever view of the case be taken, it is clear that this is not a case where the Courts should be asked to give equitable relief by directing a public servant to exercise his powers under Section 167 of the Bengal Tenancy Act. Section 173 of the Bengal Tenancy Act is mandatory and lays down that the judgment-debtor shall not bid for or purchase the tenure or holding so sold, and it has been held that if he does so, he is liable to punishment under Section 185 of the Indian Penal Code.