NAGA RAI Vs. BUCHI RAI

JUDGEMENT

(1.) This case creates some difficulty and involves a question under the Bihar Tenancy (Amendment) Act of 1935. It is the defendant's appeal, and they with the plaintiff were co-sharers in a certain village of a plot numbered 2312. On the finding of the Courts below this admittedly was the occupancy holding of one Parma Lal. Parma Lal sold a portion of this holding in 1908 to the plaintiff and about 1928 there was delivery of possession in a partition by which the portion of the holding which Parma Lal had sold to the plaintiff in 1908 fell to the patti of the defendants. There was some dispute over possession as between the defendants and the plaintiff; proceedings under Section 145, Criminal P.C. were started; and by reason of the order made in those proceedings it has been found by the lower Courts that the plaintiff was dispossessed. I understand that to mean (and indeed it is consonant with the decision of the Courts below) that in spite of the Subdivisional Magistrate holding that the defendants were in possession, in fact the plaintiff has been in possession of this plot since 1908 the date of his purchase. Both the Courts below have considered this case from the point of view of the purchase by the plaintiff in 1908.

(2.) I was at first surprised to learn that certain other transactions were not taken into consideration, nor was the case made to depend upon them, but the explanation is simple. Between the purchase of 1908 and the partition of 1928 the plaintiff had entered into certain transactions which the Courts below have held showed his determination to keep possession of the land which he had purchased. By one of these transactions the plaintiff purported to sell the property to one Sukhlal Misser in 1916 and by another Sukhlal Misser purported to sell the property back to the plaintiff in 1929. In the meantime (that is between 1916 and 1928 when the partition took place) the revisional survey had recorded this land as the occupancy holding of Sukhlal Misser, the purchaser under the sale deed of 1916. Now it is clear from the judgments of the Courts below that these transactions between the plaintiff and Misser, and the Misser and the plaintiff, were nothing more than fictitious transactions, the transaction of 1916 which purported to convey title to Sukhlal Misser being nothing more than a benami transaction and the so called sale of 1929 being nothing more than a ladavi deed or deed of release. That is the reason why neither the parties in the Courts below nor the learned Judges who decided the case took into consideration these transactions of 1916 and 1929, as the real title of the plaintiff was got by the purchase in 1908. Now, if the plaintiff got his title under the sale of 1908, the matter would be concluded by Section 26-N of the Amending Act of 1935 which provides: Every person claiming an interest as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion by sale, exchange, gift ... made before the first day of January 1923.

(3.) The later Section 26-O provides for sales after January 1923 and before the date upon which the Act came into force. As this was a purchase before 1923, Section 26-N is conclusive having regard to the decision of their Lordships of the Privy Council in K.C. Mukherjee V/s. Mt. Ramratan Kuer 1936 PC 49. Now does the fact that the purchaser under the sale of 1908 was a co-sharer landlord make any difference? The contention of the learned Advocate for the appellants is that the batwara proceedings of 1928 made this portion of the holding a separate holding, and the defendants would be entitled to joint possession with the plaintiff. That is to say, the land would be treated as bakasht land. But it must be remembered that the entry in the Record of Rights was that the land was the occupancy holding of Sukhlal Misser, the purchaser from the plaintiff in 1916. Eliminating the fact for the moment that the plaintiff was the purchaser in 1908, the question of whether the batwara proceedings conferred any right on the defendants which they had not before is concluded by the decision of this Court in Suraj Deo Narayan Singh v. Pachh Narain Singh 1917 Pat 635. I believe there is a later decision, but the authority of the case to which I have referred has never been questioned nor has the decision been overruled, and therefore it is binding upon me. That being so, the batwara proceedings not having affected nor having increased the rights of the defendants, does it make any difference that the purchase was by the plaintiff co- sharer landlord in 1908? It is quite clear that in 1908 the co-sharer landlords had no right to possession and that is admitted as the purchase was only of a part of a holding. I have already stated and repeat that the decision reported in Suraj Deo Narayan Singh V/s. Pachh Narain Singh 1917 Pat 635 decides that the batwara proceedings in no way increases the right of the plaintiff. Now Section 22, Ben. Ten. Act, has been held by the decision of this Court in Lachmi Narain Tewari v. Ramsaran Tewari 1929 Pat 185 to apply in those cases in which the holding so purchased was transferable. But there is no decision and I imagine there could hardly be any decision to the effect that Section 22, Ben. Ten. Act, does not apply to a case in which the landlords had given their consent, in other words, Section 22 applying obviously to the case of a transferable holding without the consent of the landlords, would also apply to those cases in which the landlords had given their consent; that is to say, the purchase by the co-sharer landlord of a holding, of one of the tenants with the consent of his co-sharers would place the purchaser co-sharer landlord in the position provided for by Section 22(2), Ben. Ten. Act. Now that brings me to Section 26-N, Amending Act. This was a purchase I repeat in 1908. It is a purchase by a co-sharer landlord; and if I am right in holding and I think it is impossible to hold otherwise, that Section 22 as it stood before the amendment would apply to a case where the co-sharer landlord had given his consent, then under Section 26-N the consent is deemed to have been given. Therefore the plaintiff found himself in the position of a third party purchaser of a holding or part of a holding in which the landlords had given their consent to transfer. For those reasons, in my judgment the appeal fails and must be dismissed with costs. There will be leave to appeal under the Letters Patent.