Judgement

Appeal (No. 41 of 1926) from a decree of the High Court (March 12, 1925) varying a decree of the Subordinate Judge of 24 Parganas.

The deceased father of the respondents had been proprietor of a parcel of land, and had built upon it a residential house.

In 1919 the land was sold under Act XI. of 1859 for arrears of revenue. The appellant was the auction purchaser, and a sale certificate was issued to him. In 1920 proceedings were taken for the acquisition of the land under Act I. of 1894, and the sum awarded included Rs. 12,388 in respect of "structures." The appellant claimed that sum as purchaser, but was referred to the Civil Court; he accordingly brought the present suit.

The Subordinate Judge made a decree for the whole sum. On appeal to the High Court the decree was varied, it being decreed that out of the total sum awarded for "structures," the sum of Rs.2300 should be deducted and that the present respondents were entitled to the balance.

The facts and the basis of the decree appear from the judgment of the Judicial Committee.

1927. Feb. 14, 15. Sir George Lowndes K.C. and Dube for the appellant. Ben. Act VII. of 1868, which defines the " estate " which is sold under Act IX. of 1859, refers to it as land under assessment, and having regard to the General Clauses Act, 1897, s. 3, sub-s. 25, and s. 4, land means immovable property. The house therefore passed to the appellant as auction purchaser. No doubt observations in Thakoor Chunder Poramanick v. Ram Dhoree Bhattacharjee (( 1866) 6 Suth. W. R. 228.) and Shib Dhoss Banerjee v. Baman Dhoss Mookerjee (( 1871) 15 Suth. W. R. 360.) are against this view, but those decisions are distinguishable. The first was a case of a sale by a Hindu widow, and therefore gave rise to considerations which do not arise in this case. In the second there is only a dictum based on Ramkoomar Sen v. Mohesh Chunder Sen (( 1860) 1 Sud. Ad. 637.), a case not decided under the Act of 1859. Though a house is not an incumbrance on the land sold, yet if the house remains vested in somebody else, there would arise an easement which would be an incumbrance. (Act IX. of 1859, s. 37, cl. 4, referred to.) Inconvenient anomalies arise if on a sale of land buildings upon it do not pass to the purchaser.

Dunne K.C. and Kenworthy Brown for the respondents. It is well settled that in India the principle that everything attached to land forms part of it has no application. As between a proprietor of settled land and Government, the latter has no right or title to a house on the land, and what is sold on a sale for revenue is the interest of the Government subject to the assessment Collector of Trichinopoly v. Lekkamani (( 1874) L. R. 1 I. A. 282, 306.); Maharaj Surja Kanta Acharjya v. Sarat Chandra Roy Chaudhuri (18 Cal. W. N. 1281,1285.) ; Sashikanta Acharyya v. Sarat Chandra Rai Chaudhuri. (( 1921) 34 Cal. L. J. 415, 421.) In the absence of any express words as to buildings in the definition in Ben. Act. VII. of 1868, the "estate" sold cannot be treated as including the house. The respondents have the right to remove the house, and are entitled to the whole of the compensation awarded in respect of it.

Sir George Lowndes K.C. replied.

March 21. The judgment of their Lordships was delivered by

SIR LANCELOT SANDERSON. This is the plaintiffs appeal against the decision of a Division

Law. Rep. 54 Ind. App. 218 ( 1926- 1927) Narayan Das Khettry V. Jatindra Nath Roy Chowdhury

77

Bench of the High Court of Judicature at Fort William in Bengal, given on March 12, 1925, which reversed a judgment and decree dated August 24, 1922, of the learned Subordinate Judge of the 24 Perganas.

The material facts are as follows—

Satyendra Nath Roy, who was the predecessor of the defendants, was the proprietor of the holding in question The holding was sold in December, 1919, under the provisions of Act XI. of 1859 for arrears of the Government Revenue of Rs.2 annas 8 and pie 1. The plaintiff purchased the holding at the s