MT NANHA KUER Vs. MTKHUBSURAT KUER

JUDGEMENT

(1.) This appeal by the plaintiff raises the question whether a tenant, whose holding was sold in execution of a decree, for rent but was not reduced to possession by the landlord by obtaining delivery of possession from Court, is entitled to make an application for restoration of that holding under Section 3, Bakasht Restoration Act, beirjg Bihar Act IX

(9.) of 1938.

(2.) It appears that the plaintiffs were occupancy tenants of a raiyati holding measuring 4 bighas 4 kathas. A suit for arrears of rent was instituted and a decree obtained. In execution of the decree the holding was sold on 22nd September 1936, and purchased by the landlord defendant 1. The sale was made absolute but defendant 1 did not get delivery of possession through Court until 18 December 1939. On 11 October 1938, Bakasht Restoration Act was assented to by the Governor General and came into force. An application under Section 3 for restoration of bakasht lands was, under the provisions of the Act, to be made within one year from the date of the Act coming into force. The plaintiff, therefore, filed an application for restoration on 14 October 1939. The holding was ordered to be restored to the plaintiff on 31 May 1940, as during the pendency of this application the landlord had obtained delivery of possession on 18 December 1939. The landlord moved the Commissioner of Fatna against this order of the Bakasht Restoration Officer who by his order dated 29 May 1941, set aside the order restoring the holding of the plaintiff on the ground that the order was without jurisdiction in so far as the landlord had not come in possession of the holding on the date of the application, and the plaintiff's application for restoration was not, therefore, maintainable under the Act. The plaintiff was, therefore, obliged to bring the suit for a declaration that the order of the Commissioner setting aside the order of the Bakasht Restoration Officer was without jurisdiction as under Section 22 of the Act, the order passed by the Bakasht Restoration. Officer was final and was not subject to appeal or revision or even to be challenged by way of suit in a Court of law.