HAJI RAJAB ALI Vs. SHAIKH AKBAR ALI

JUDGEMENT

(1.) The plaintiff-respondent sued for partition of a hall share in four items of property purchased at auction sales between 1912 and 1914. One of the sale certificates stated that the purchasers were (he plaintiff and defendant No. 1; in the second sale certificate the purchasers are said to be defendant No. 1 and the plaintiffs brother and in the other two sale certificates defendant No. 1 alone is described as the purchaser. The sales were held in execution of rent decrees by the Deputy Commissioner under the Chota Nagpur Tenancy Act. The plaintiff's case is that he agreed with the defendant that they should jointly purchase items of property at auction sales and should provide the money half and half for these purchases and acquire title half and half to the properties purchased. The plaintiff further alleges that some time after the purchases he became aware of the fact that his name had been omitted from the certificates in three cases and that the defendant thereupon executed an ekrarnama acknowledging his half interest in all the items purchased. The Courts below have given the plaintiff the decree which he sought. With regard to one item of property, viz., that of which the plaintiff and defendant No. 1 are stated to be purchasers in the sale certificate, there is no appeal. Defendant No. 1, however, appeals with regard to the other three items.

(2.) It is contended by the learned Advocate for the appellant that the suit is barred by Sec. 66, Civil Procedure Code. On behalf of the respondent, on the other hand, it is contended that section of the Civil P. C. has no application to sales under the Chota Nagpur Tenancy Act.

(3.) Section 265 of the latter Act empowers the Local Government to make rules for regulating the procedure of the Deputy Commissioner in matters under the Act for which the procedure is not provided by the Act itself, and goes on to state that by any such rule the Local Government may direct that any provisions of the Code of Civil Procedure, 1908, shall apply with or without any modification to all or any class of cases before the Deputy Commissioner. The only provision of the Code of Civil Procedure which has been so applied by rule, so far as I have been able to ascertain, is Section 10 of the Code, which was applied to suits for recovery of arrears of rent by Notification No. 6807 in 1913. There is, therefore, no rule applying Section 66, Civil Procedure Code, to matters before the Deputy Commissioner. Clause 1, Section 265, by implication renders the provisions of the Civil P. C. inapplicable to matters before the Deputy Commissioner except in so far as the provisions of the Code are applied to such matters by rule. The contention, therefore, that in the present case the suit is barred by Section 66, is unsustainable. The appeal, therefore, fails and must be dismissed with costs.