RAM KIRIT SINGH Vs. RAMA SINGH

JUDGEMENT

(1.) This is an appeal by defendant 1 who is aggrieved by the decision of the appellate Court decreeing the suit of the plaintiffs-respondents after holding that the proceedings under the Restoration of Bakasht Lands Act (Act 9 [IX] of 1938) were ultra vires. The facts are these. The respondents purchased on 10-8-1932 by a registered sale deed a portion of the holding appertaining to Khata No. 3 from the tenants defendants 1 to 4 and the father of defendant 5. The purchase was not recognised by the landlord, defendant 6, who in the year 1935 in execution of a decree for, rent which he obtained against his recorded tenants purchased the property The trial Court held that after the purchase the plaintiffs were dispossessed and were not recognised as tenants by the landlord who took khas possession. The appellate Court, however, has come to the conclusion that defendant 6, the landlord, did not take delivery of possession, but allowed the plaintiffs to continue in possession after taking salami and issued receipts for rents to the plaintiffs. Thereafter, the original tenants made an application to the Collector under Section 3, Restoration Act, and notwithstanding the opposition by the landlord and the plaintiffs they obtained an order on 5-10-1940 that they should be restored to possession after payment of the rent due to the landlord for the relevant period but at a reduced rate. The plaintiffs accordingly instituted a suit giving rise to this appeal on the 122-1940, for a declaration of their title to and for confirmation or in the alternative for recovery of possession of 495 acres being part of khata No. 3 which they had purchased from the tenants as stated above. The plaintiffs urged that the order of the Rent Reduction Officer was ultra vires as on the date of the order the plaintiffs were in possession as the result of a fresh settlement by the co-sharer landlord who had right to do so under Section 22(2), Bihar Tenancy Act. The trial Court was apparently struck with the clear injustice to the plaintiffs because he says: Ordinarily it seems peculiar that the raiyat should not be held bound by the liabilities created by himself. It is really peculiar that the purchase of khata No. 3 by defendant 6 which would have seemed in the beginning a curse for defendant 1 should ultimately prove to be more than a blessing for defendant 1 because he is free from the sale made by him in respect of the suit land. In the present case, however, the purchase of khata No. 3 by defendant 6, had the effect of making the purchase of the plaintiffs null and void and inoperative.

(2.) The appellate Court took the view that even if it was found that the effect of the rent sale and the continuance of possession of the plaintiffs with the consent of the auction purchaser can only be regarded as a fresh settlement by the co-sharer landlord the Revenue Officer had no jurisdiction to restore such lands in view of the provision of Section 6(1)(d) and Section 3(1), Restoration Act. But he also held that it appeared to him to be doubtful whether the tenant-defendants having sold away the holding or a portion thereof to a third person could ask for restoration of the same when it was purchased by the landlord. He goes on to observe: The raiyats under the kebala (exhibit 2) sold away the holding and so it cannot be said that it was their holding which was sold. It was the holding of the plaintiff-appellants which was sold in the execution sale and they had no right to contest the sale as they had not paid the landlord's fees. They, however, compromised with the landlord and continued in possession as before. It is not, therefore, understood how the right of the tenant-respondents to get back the property which they had sold away for consideration revived again since whatever right they had in the disputed land was extinguished by the sale under the kebala. In view of the fact that they sold away the disputed lands to the plaintiffs, they had no right to come under Section 3(1) of the Act and the order of the Revenue Officer was, therefore, without jurisdiction.

(3.) Accordingly he allowed the appeal, set aside the decision of the learned Munsif and decreed the suit by declaring that the plaintiffs had full right to the disputed land. Hence the second appeal to this Court. It appears from the narrative which we have given above from the judgment of the learned Subordinate Judge that in one part of the judgment he thought that the entire holding of the tenants had been sold by them under the kebala to the plaintiffs and in another part of the judgment he says that a portion of the holding had been sold to the plaintiffs. The truth of the matter is that only a part of the holding recorded in khata No. 3 has been sold to the plaintiffs; this was clearly stated by the learned Judge in the opening lines of his judgment. We must, therefore, proceed upon the footing that only a portion of the holding had been sold to the plaintiffs.