NAGOBA Vs. A. V. ZINZARDE

JUDGEMENT

(1.) 1. The applicants are insolvents. On 27th April 1926 an order was passed in virtue of which all the property of the insolvents including sir lands was vested in the receiver and given into his possession. In the beginning of 1928 the insolvents asked that they should be put into possession of the sir lands on the ground that they, by the order dated 27th April 1926, had become exproprietary occupancy tenants under the provisions of Section 49, C.P. Tenancy Act. The insolvency Court held that they had not become tenants: in appeal the learned District Judge, Nagpur, held that they had become tenants but considered that because the insolvents had not urged this point sooner, the appeal failed. The learned Judge remarked that it might be open to the lower Court to return possession of the occupancy rights in the sir lands to the insolvents.

(2.) THE insolvents have applied for revision and Section 75, Provl. Insol. Act, gives me ample power to set aside the order it it is not according to law. I do not think the appeal of the insolvents ought to have been dismissed on the ground that the applicants had failed to take a plea at a previous stage of the case or had delayed their application. The receiver is an officer of the Court and as soon as the Court finds that he has wrongly been given possession and ought not to remain is possession, the Court should direct him to deliver possession to the proper persons. If the insolvency Court owing to a mistaken view of the law, does not pass such an order, the person aggrieved may appeal and the appellate Court should pass the order.

(3.) NOW in a series of rulings reference has been made to the possessory as apart from the cultivating right of a proprietor in sir land. I cite a sentence from Diwan Zalimsingh v. Chhadamilal [1898] 11 C.P.L.R. 133 at p. 136: In the present case the plaintiffs are entitled to bring to sale the entire rights, i.e., the possessory and the cultivating rights of tha proorietor in the sir land.