JAGDISHWAR DAYAL SINGH vs PATHAK DWARKA SINGH

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1933 Supreme(SC) 16

PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, SIR GEORGE LOWNDES, AND SIR DINSHAH MULLA.
JAGDISHWAR DAYAL SINGH - Appellant
Versus
PATHAK DWARKA SINGH - Respondents
On Appeal from the High Court at Patna.
Decided On : February 14, 1933.

Important Points

A sale of a tenure for rent arrears under the Chota Nagpur Tenancy Act is invalid and ultra vires the Revenue Court if all interested parties are not joined in the suit, thereby allowing the Civil Court to intervene despite statutory bars on such suits.

Subject

Property Law - Land Tenancy and Rent Recovery

Act Referred

BENGAL TENANCY ACT: S.159
CHOTANAGPUR TENANCY ACT: S.211, S.214, S.208

Headnote

(A) Chota Nagpur Tenancy Act, 1908 - Sections 11, 208, 211, and 214 - Bengal Rent Recovery Act, 1865 - Sale of tenure for arrears of rent - Necessity of joining all interested parties - Jurisdiction of Civil Court - Failure to comply with the provisions of Section 11 regarding the entry of names in the landlord's records does not result in the forfeiture of rights in the tenure; such failure only affects the power to recover rent from under-tenants.

(B) Validity of sale under Section 208 - To justify a sale of a tenure under Section 208, all parties interested in the tenure must be joined as defendants in the rent suit or be sufficiently represented by parties joined as defendants.

(C) Jurisdiction of Civil Court - Section 214 bars suits to set aside sales made under the Act except on grounds of fraud or want of jurisdiction. If a sale is ordered without joining all interested parties, it is ultra vires the Revenue Court and not a sale "made under" the chapter, thus the jurisdiction of the Civil Court is not excluded. (Paras 11, 12, 16, 18)

Facts of the case:
A landlord obtained a decree for arrears of rent against some co-holders of a tenure and subsequently sold the entire tenure in execution. One co-holder, a widow, was not joined as a defendant in the rent suit, although her name was entered in the record of rights. The landlord contended that her failure to have her name entered in the landlord's records (sarishta) and her failure to pay rent entitled him to proceed with the sale of the tenure without joining her. The respondents, holding rights under the tenure, sought an injunction to restrain the landlord from recovering possession.

Findings of Court:
The court found that the failure to comply with Section 11 does not lead to forfeiture of rights in the tenure. It further held that the sale of the entire tenure was invalid because a necessary party was not joined in the suit. Consequently, the order for sale was ultra vires the Revenue Court, and the sale did not fall within the scope of the statutory bar against Civil Court jurisdiction.

Issues: Whether the failure to register a name in the landlord's records justifies a sale of the tenure without joining the party; whether all interested parties must be joined for a sale under Section 208 to be valid; and whether the Civil Court's jurisdiction is barred by Section 214 when the sale is ultra vires.

Ratio Decidendi: The court ruled that for a sale of a tenure under Section 208 to be valid, all interested parties must be joined or sufficiently represented. A sale conducted without such joinder is ultra vires the statutory jurisdiction of the Revenue Court. Because the sale was ultra vires, it was not a sale "made under" the Act for the purposes of Section 214, and therefore the Civil Court had jurisdiction to entertain the suit.

Result: Appeal dismissed.

Legal Category Hierarchy

Advocates:
Solicitors for appellant :H. S. L. Polak & Co. Solicitors for respondents: W. W Box. & Co.

Judgement

Appeal (No. 99 of 1930) from a decree of the High Court (January 17, 1929) reversing a decree of the additional Subordinate Judge at Palamau (December 17, 1928).

The suit was instituted by the plaintiff-respondents claiming an injunction against the appellant restraining him from recovering possession of mauza Maran from them. The appellant having brought a suit in 1919 for arrears of rent of a tenure which included the village, obtained a rent decree, and the tenure was subsequently sold in execution under the Bengal Rent Recovery Act (VIII. of 1865) and purchased by the appellant. Objection had been raised that the decree, in execution of which the sale had taken place, was not a rent decree within s. 208 of the Chota Nagpur Tenancy Act, 1908, and that the sale was invalid. The Board of Revenue (upon appeal) dismissed the objection. The question for determination in the appeal was whether the sale was valid and whether the suit challenging its validity could be entertained by the Civil Court.

The facts and the material statutory provisions appear from the judgment of the Judicial Committee.

The trial judge held that the sale was valid and accordingly dismissed the suit. On appeal the High Court, by a judgment delivered by Das J. and concurred in by James J., held that the sale was invalid, and that as the rent decree was made without jurisdiction the suit was maintainable ; accordingly the suit was decreed. The appeal is reported at I. L. R. 8 Pat. 620.

1933. Jan. 12, 26. Sir Dawson Miller K.C. and Wallach for the appellant referred to Doolar Chand Sahoo v. Lalla Chabeel Chand (( 1878) L. R. 6 I. A. 47.) ; Bissessur Loll Sahoo v. Luchmessur Singh (( 1879) L. R. 6 I. A. 233.) ; Jeo Lal Singh v. Gunga Pershad (( 1884) I. L. R. 10 C. 996.) ; Profulla Kumar Sen v. Salimulla (( 1918) 23 C. W. N. 590.) ; Nitayi Behari Saha Paramanick v. Hari Govinda Saha . (( 1899) I. L. R. 26 C. 677.)

G. D. McNair for the respondents referred to Kesha Prasad Singh v. Shamnandan Rai (( 1925) I. L.

R. 5 Pat. 233.) ; Berardar Singh v. Bacha Mahto (( 1919) 5 Pat. L. J. 32.) ; Chamatkari Dasi v. Triguna Nath Sardar (( 1913) 17 C. W. N. 833.) ; Chandra Nath Tewari v. Protap Udai Nath (( 1913) 18 C. W. N. 170.) ; Jagan Mohan Sarkar v. Brojendra Kumar Chakrabarti . (( 1925) I. L. R. 53 C. 197 (F. B.).)

Feb. 14. The judgment of their Lordships was delivered by

LORD THANKERTON. This is an appeal from a decree of the High Court of Judicature at Patna, dated January 17, 1929, which reversed a decree of the additional Subordinate Judge of Palamau, dated December 17, 1925, and decreed the plaintiffs suit with costs.

The appellant, who is defendant No. 1 in the suit, is the proprietor of the Lokiya Narainpur estate, which includes villages Maran, Rouni, Bedra and an 8 annas share of Chowreah. The rule of primogeniture obtains in the appellants family. At some time prior to 1865 his ancestor made a khorposh grant to the ancestor of original defendant No. 2, of defendants Nos. 3 and 4, and of Maheshanand, the deceased husband of defendant No. 5. Original defendant No. 2 died pending suit and his two sons were substituted. Defendants Nos. 2, 3 and 4 had an 8 annas share in the khorposh subjects and Maheshanand had the remaining 8 annas share.

The contesting respondents in this appeal are the plaintiffs in the suit, and they are in possession of mokarrari rights in mauza Maran, which forms part of the khorposh lands, under leases executed in 1865 in favour of their predecessors in title by the predecessors in title of defendants Nos. 2, 3 and 4.

About 1910 Maheshanand died without issue but leaving a widow, defendant No. 5. The name of the latter was entered in the record of rights, which was completed in 1920, as the holder of an 8 annas share of the khorposh lands, but she did not take any steps to have her name entered in place of that of her deceased husband in the sarishta of the landlord, as prescribed by s. 11 of the Chota Nagpur Tenancy Act, n