Judgement

Two consolidated appeals (No. 14 of 1922) from a judgment and two decrees (May 25, 1920) of the High Court reversing decrees of the Subordinate Judge (Second Court) of 24 Pargannas.

The appellant; who was the purchaser of holdings at an auction sale for arrears of revenue under Act

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XI. of 1859 sued to annul the defendants under-tenures and to eject them. The defence was that there was no arrear of revenue, and that in any case the under-tenures were protected by s. 12 of Bengal Act. VII. of 1868.

The Subordinate Judge decided all issues in favour of the plaintiff-appellant. Upon appeal the High Court reversed his decision, holding that there was no arrear at the date of the sale; the learned judges pronounced no opinion upon the question whether the under-tenures were protected by the section above mentioned.

The facts appear from the judgment of the Judicial Committee.

1922. Nov. 9. Sir George Lowndes K.C, and Dube for the appellant.

De Gruyther K.C. and Kenworthy Brawn for the representatives of the first respondent to the first appeal.

Wallach for the first respondent to the second appeal.

Nov. 28. The judgment of their Lordships was delivered by

SIR JOHN EDGE. These are two consolidated appeals from two decrees, dated May 25, 1920, of the High Court at Calcutta, which reversed two decrees, dated January 31, 1918, of the Subordinate Judge (Second Court) of the 24 Pargannas. The decrees from which these consolidated appeals have been brought were respectively made in suits numbered 19 and 20 of 1917. In each of these suits the present appellant was the plaintiff, and some of the present respondents were the defendants in one of the suits and others of the present respondents were the defendants in the other of the suits. The suits were tried together, as were the appeals to the High Court. The suits are suits by an auction purchaser under Act XI. of 1859 of lands for ejectment of under-tenants and for mesne profits.

The lands to which the suits relate are situate within the collectorate of the 24 Pargannas, a permanently settled District of Bengal, to which Act XI., of 1859 applies. On April 14, 1915, the Collector of the District issued notice and proclamation under Act XI. of 1859 that the holding No. 20a, which is the land now in question, would be sold under Act XI. of 1859 for the realization of Rs.6, 10 annas and 5 pies revenue in arrears from the year 1320 B.S. The holding was sold by auction on May 17, 1915, and was purchased by the plaintiff, who subsequently received a sale certificate. The Government revenue for an arrear of which the holding was sold was the revenue for 1320 B.S. The defendants were at the date of the auction sale under-tenants of lands in the holding sold, and the plaintiff claims to be entitled to eject them.

The plaint and the written statement of Kumar Birendra Chandra Singh, a defendant in suit No. 19 of 1917, and the plaint and written statement in suit No. 20 of 1917, are in the printed record.

In his plaints the plaintiff alleged that the Collector of the District, on May 17, 1915, put the holding No. 20A up for sale by auction under the provisions of Act XI. of 1859 for arrears of the Government revenue, and that he (the plaintiff), having purchased it at the sale, and having obtained the sale certificate, had, under s. 37 of Act XI. of 1859, acquired it free of all encumbrances, and had become entitled to annul all the subordinate rights, and to recover khas possession of the holding by ejecting the tenants holding any subordinate right, and claimed a decree for ejectment and mesne profits. The defence, so far as it is now material, was that there was no arrear of the Government revenue to recover which the Collector was entitled to sell the holding, and that in any case the defendants were

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within the ex