GAGAN BIHARI DAS Vs. SRI SARABHUJ

JUDGEMENT

(1.) This revision petition is filed by the plaintiffs in a suit for recovery of Rs. 36-4- 0 from the defendants, auction-purchasers of an occupancy holding as mutation fee under Section 31(B), inserted into the Orissa Tenancy Act (1913) by Section 8, Orissa Tenancy (Amendment) Act (VIII of 1938). The plaintiffs are co-sharer- proprietors in the estate within which the transferred holding is situate with a share of 6 annas 8 pies therein. The other co-sharers have not been impleaded as party defendants nor there is anything on record to show what their attitude is in relation to the subject-matter of the suit.

(2.) The plaintiffs claim that by virtue of the provisions of Section 31(B) read with Section 250 of the Act, they are entitled to maintain the suit and to recover the mutation fee, the sum claimed being their share in proportion to their interest in the proprietary right, of 25 per cent. of the consideration money for which the holding in question has been transferred. The defendants resist the suit impugning the suit as non-maintainable and pleading that no fees were lawfully payable by them at the time of the transfer which took place on 10-12-36, within the meaning of Section 31(B).

(3.) Section 31(B)(1) invoked in aid of the suit reads as follows: Notwithstanding anything contained in this Act, any transferee, who obtained a transfer of an occupancy holding or a portion or a share thereof, before the commencement of the Orissa Tenancy (Amendment) Act 1938, shall be liable to pay the fees lawfully payable by him at the time of the transfer, within three years from the coming into force of that Act or the date of the landlord's knowledge of the transfer whichever is later, but he shall not be liable to ejectment on the ground that the landlord has not given his consent to the transfer.