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1950 Supreme(Pat) 61
PATNA HIGH COURT
Reuben and B.P.Jamuar JJ.
Badri Narain Singh
Versus
Bageshwari Prasad Dubey
Appeal from Original Decree No. 324 of 1946 ;
Decided On : MARCH 21, 1950
Important Points
Subject
Property Law - LAND REVENUE
Act Referred
EVIDENCE ACT : S.115
Headnote
PUBLIC DEMANDS RECOVERY ACT - CERTIFICATE SALE - REPRESENTATION - RIGHT, TITLE AND INTEREST OF CERTIFICATE DEBTOR - MORTGAGE - ADVERSE POSSESSION - REDEMPTION.
Fact of the Case:
A certificate sale was held to recover arrears of cess due in respect of a share of two annas in a village. The share was purchased by Harbans Prasad Dubey, who claimed to have acquired the entire two annas interest. However, the defendants contended that only a fraction of two annas passed by the certificate sale, as the certificate-debtors represented only a portion of the interest in the property.
Finding of the Court:
The court held that the certificate sale passed only the right, title, and interest of the certificate-debtors, which was a fraction of the two annas share. The court also held that the principle of representation did not apply to the certificate procedure, and that the mortgagees were entitled to recover possession of the portion of the property not covered by the certificate sale.
Issues: 1. Whether the defendants were entitled to contend that only a fraction of two annas passed by the certificate sale? 2. Whether the batwara proceedings could be reopened? 3. Whether the certificate-debtors represented the entire interest? 4. Whether the plaintiffs were entitled to recover possession of the whole two annas even though their interest was confined to a fraction?
Ratio Decidendi: 1. The court held that the defendants were entitled to contend that only a fraction of two annas passed by the certificate sale, as the certificate-debtors represented only a portion of the interest in the property. The court relied on the provisions of Section 26(1) of the Bihar and Orissa Public Demands Recovery Act, 1914, which provides that a certificate sale passes only the right, title, and interest of the certificate debtor. 2. The court held that the batwara proceedings could not be reopened, as the patti allotted to Harbans in the batwara was intended to represent the whole two-annas interest. 3. The court held that the certificate-debtors did not represent the entire interest, as they were only a portion of the co-sharers in the property. 4. The court held that the plaintiffs were not entitled to recover possession of the whole two annas, as their interest was confined to a fraction. The court relied on the principle laid down in Ganga Prasad Singh V/s. Mt. Ganeshi Kuer, (A. I. R. (31) 1944 pat. 119 : 22 Pat. 761) ante, which held that a plaintiff who has acquired the title to the entire equity of redemption by prescription cannot be asked to redeem his share of the property.
Final Decision: The court allowed the appeal in part and modified the decree of the Subordinate Judge by directing that the plaintiff recover only a share of 18 dams in tauzi No. 11210. The parties were directed to get costs proportionate to their success throughout.
Reuben, J.
1. This is an appeal against a decree of the Additional Subordinate Judge of Gaya.
2. In village Kusahan Pipra there was a Tauzi No. 2578, comprising several separate accounts. We are concerned here with a share of two annas recorded in separate account No. 7 which formerly belonged to one Gajraj Singh, and on his death passed to his widow Pachhlari Kuer. It is common ground that on bar death the property passed to Fateh Bahadur and Tika Ram, sons of Gajrajs divided cousin Uttim Singh, whose other sons Bishwanath and Bhondu were then dead. In the year 1923, a certificate under the Bihar and Orissa Public Demands Recovery Act, 1914, was filed for the recovery of arrears of cess due in respect of separate account No. 7. In execution of this certificate, the share was sold on 29-10-1923 and was purchased by Harbans Prasad Dubey, the original plaintiff in the suit. By this time Fateh Bahadur and Tika Bam were dead. Three certificate-debtors were named in the certificate, Mathura and Matukdhari, sons of Fateh Bahadur, and Parichhit, son of Bishwanath. The sale was confirmed in due course and Harbans took delivery of possession on 23-8-1924 and got himself recorded as proprietor of this share on 6-5-1925. At that time, a batwara proceeding was pending in respect of Tauzi No. 2578. Harbans intervened, was allotted a new Tauzi No. 11210, in respect of the two anna interest purchased by him, and got delivery of possession over it on 2-5-1928. In the meantime, Mortgage Suit No. 66 of 1927 had been instituted in respect of the two annas share on the foot of a simple mortgage bond executed by Fateh Bahadur and Tika Bam. For some reason, Jwala Prasad Dubey, father of Harbans, was impleaded in the suit instead of Harbans, and although a decree was obtained against him in the Court of first instance, the suit was dismissed against him by the High Court in appeal on the ground that Harbans was the real purchaser in the certificate sale. On 8-1-1987, Tauzi No. 11210 was sold in execution of the decree in mortgage Suit No. 66 of 1927 and was purchased by Mahabir Prasad, defendant l in the present suit, from whom the appellant before us derives his title, and the purchaser obtained delivery of possession in June 1937. The present suit was brought for a declaration that Harbans Dubeys title was unaffected by the mortgage, and for confirmation of his possession over the suit property, and in the alternative for recovery of possession.
3. The defence taken was that Harbans purchased the property as benamidar of the certificate-debtors and that the reel owners of the property were fully represented in the mortgage suit; secondly, that even conceding that Harbans was the real purchaser be acquired merely the right, title and interest of the certificate debtors.
4. The learned Subordinate Judge has rejected the first contention but has accepted the second. As regards possession he has found that Harbans was dispossessed. Relying on Ganga Prasad Singh V/s. Mt. Ganeshi Kuer, A.I.R. (31) 1944 pat. 119 : (22 Pat. 761), he has held that the plaintiffs are entitled to recover possession of the entire property.
5. In appeal, the issue of benami was not seriously pressed before us, but it was urged that the plaintiffs are entitled to recover possession only of the portion of the property representing the right, title and interest of the certificate-debtors. On the other side, it was urged, firstly that the question of the passing of only a share by the certificate sale should not have been allowed to be raised, secondly that the certificate-debtors represented the entire interest and so the entire interest passed, thirdly that the batwara proceedings cannot be reopened, and that if by the batwara a larger patti has been given to Harbans than his real interest warrants this cannot be helped; the mortgagors must seek their remedy against the portion allotted in the batwara to the proprietors who are entitled to the remaining fraction of the t
