DEVI SANKAR BANERJEE Vs. JANENDRA NARAYAN BAGCHI

JUDGEMENT

(1.) The rule which wee are now considering was issued as long ago as 3 August 1936. It is directed against two orders made by the District Judge of Birbhum dated respectively 16th July 1936 and 30 July 1936. The matter came before the learned Judge in these circumstances. The present petitioner Debi Sankar Banerjee had purchased Dihi Baidora and certain other mehals appertaining to Touzi No. 1152/1 of the Birbhum Collectorate in Astham proceedings No. 15 and 72/93 of 1936-37 on 23 May 1936 for Rs. 27,100 and he had obtained from the Collector a certificate vouching for the fact that he had made full payment of the purchase money. The subject-matter of the purchase was a patni taluk, and in the patni potta there was a covenant which as translated, reads as follows: If you create a darpatni, you must do so at the jama mentioned in the kobala and inform me at once. You must not create it at a lesser jama and if you do so, it shall be void.

(2.) The patnidars against whom the sale had taken place let out the mouzas comprised in the patni by creating some 18 darpatni pottas. The purchaser in due course applied to the zamindar in order to procure a transfer into his own name in the Cutchery of the patni rights upon his furnishing security to the extent of half the jama or annual rent, and he had obtained what is described as the usual amaldastak, that is to say an order for possession, together with notice directed to the raiyats and other persons concerned, to attend and thenceforward to pay their rents to Debi Sankar Banerjee as the purchaser at the auction sale of the patni. Subsequently, Debi Sankar Banerjee proclaimed in all the mouzahs in question, that is to say the mouzahs which comprised the patni, that he annulled all under tenures created by the outgoing patnidars, and that he had taken possession of the mahal. Certain of the patnidars, however, attempted to offer some opposition and to interfere with the collection of rents which was being made by the purchaser, and it is said that they were endeavoring to induce the raiyats not to pay rent to the purchaser and so creating difficulties in the way of the collection of rents, in particular as regards the mouza which was known as Dihi Baidora. Thereupon the petitioner applied to the District Judge, Birbhum, under the provisions of Section 15 of the Patni Regulations (8 of 1819) asking for the issue under the seal of the Court and the signature of the Judge, of a proclamation declaring that the new incumbent having, by purchase at a sale for arrears of rent due to the zamindar, acquired the entire rights and privileges attaching to the tenure of the previous patnidar in the state in which it was originally derived by him from the zamindar, he alone would be recognized as entitled to make the zamindari collections in the mufassal, and that no payments made to any other individual would on any account be credited to the raiyats or others in any suit for rent or on any other occasion whatever. I am using the precise words of the Section itself. The object, of course, of endeavoring to obtain such a proclamation was to avoid any further difficulties as regards the collection of the rents and to avoid any breach of the peace. The application was made to the District Judge, Birbhum, on 13 July 1936, and on that date the learned Judge recorded an order in these terms: The petitioner has prayed for issue for a proclamation under Section 15, Clause 2 of the Putni Sale Jaw. Heard petitioner's pleader. Orders reserved.

(3.) On the next day, the darpatnidars, or some of them, appeared in the Court of the District Judge of Birbhum and asked for time to file objections to the application which was being made by Debi Sankar Banerjee. His pleader contended however that these darpatnidars had no locus standi to appear at all, and so the learned Judge upon the request of the pleader for the darpatnidars, adjourned the matter until the day following for argument. The matter duly came on for hearing on 15 July 1936. The darpatnidars filed their objection arguments were heard and the learned Judge then reserved the judgment until the following day. The case put forward by the darpatnidars was that their darpatnis had been created by the patnidars. under the power given to them by the clause in the patni potta to which I have referred. They said that that clause was sufficient to give to the patnidars express authority to grant darpatnis. They, accordingly, contended that Debi Sankar Banerjes as the purchaser was not entitled to have a proclamation issued in accordance with the application he had made. On the other hand it was contended, on behalf of Debi Sankar Banerjee, that the darpatnidars, had no right to appear in the proceedings at all or to resist his application, because the proceedings were only of a summary nature and the purchaser had received the amaldastak from the zamindar, an amaldastak entitling him to go into possession. It was contended before the learned Judge, and it has been contended before us, that in the circumstances the Court had no option whatever in the matter; that in effect the provisions of Clause 2 of Section 15 of the Patni Regulation was mandatory, and so the Court was bound to issue the proclamation asked for.