JAISRI SAHU Vs. DOMA

JUDGEMENT

(1.) This is an appeal by the plaintiffs. They sued for recovery of possession of the lands in suit which were recorded in the revisional settlement under khata Nos. 70 and 71 in the name of one Harakhman Sahu. On ll February, 1936, Harakhman Sahu sold these lands to one Alam Sahu under a registered sale deed. Alam Sahu subsequently in the year 1941, sold to the plaintiffs under a registered deed dated 17 April 1941, the lands in suit. The plaintiffs after their purchase from Alam Sahu attempted to take possession of the lands, but were resisted by the defendants. Both the courts below rejected the defence case and came to the definite conclusion that Alam Sahu was not the farzidar of Harakhman Sahu and that the sale to the former was for consideration, valid and a genuine transaction. Both the Courts also held that under the document Alam Sahu acquired a valid title and the alleged settlements made in favour of the defendants by Harakhman Sahu after he had transferred his interest in the lands were of no help to the defendants. It would also appear from the judgments of the courts below that Harakhman Sahu was an unscrupulous man; but the courts below were of the opinion that the plaintiffs suit must be dismissed on the ground that Section 46(4) (a), Chota Nagpur Tenancy Act, stood in the way. The section states that: An occupancy-raiyat, who is not an aboriginal or a member of a scheduled caste, may transfer his right in his holding or any portion thereof to any person who is resident within the local limits of the police- station area within which the holding; is situate by sale, exchange, gift, will, mortgage or lease.

(2.) The Munsif came to the conclusion that the plaintiffs were not residents of village Malti where the lands in suit were situate and, therefore, the purchase by the plaintiffs was illegal and inoperative. The lower appellate Court came to the conclusion that the story of the plaintiffs having purchased a house in. Mauzah Malti was a myth and that the plaintiffs were not residents of village Malti or of any other village within the local limits off police station Mander (the thana within which the lands in suit lie).

(3.) It was urged on behalf of the appellants that before one could apply Section 46(4)(a) Chota Nagpur Tenancy Act, it had to be found as a fact that the plaintiffs were not residents within the local limits of the Police-station area within which the, lands in suit were situate. No issue had been framed on-this point as to whether the plaintiffs at the-time that the document was executed in their favour in 1941 by Alam Sahu were residents within the local limits of police station Mander and it is argued that the plaintiffs were prejudiced by having to meet all of a sudden the contention that they were not residents within the local limits of police station Mander. It was pointed out that although the document by which the plaintiffs acquired the lands from Alam Sahu. distinctly describes the vendees as residents of Malti and the plaint distinctly states that, the plaintiffs were residents of Malti, a village within the jurisdiction of police station Mander, there was nothing in the various written statements filed on behalf of the-defendants in which there was the slightest indication by which the plain tiffs could under stand that any of the numerous defendants were challenging the fact that the plaintiffs were residents of any place, village or area within the local limits of police station Mander.