Decided on April 04,1950

Reghu Singh Appellant


NARASIMHAM, J. - (1.) THIS is an appeal from the judgment of the Subordinate Judge of Sambalpur, dismissing the plaintiff -appellants' suit for recovery of possession of village Pandripathar together with its Sir and Khudkast lands as given in Schedule 'a' to the plaint.
(2.) PANDRIPATHAR village is a village within Rampur zamindary in Sambalpur district, the present Zamindir being Mohan Brajaraj Singh defendant 7. In the Khewat (Ex. 2) of the last settlement of Sambalpur district (known as Hamid's Settlement) which took place in 1921 25 the whole village excluding some lands of the B. N. Rly., was entered in the name of Dasarath Singh (defendant 3) as Kharposdar (maintenance -holder) under the Khewat of the Zamindar of Rampur to whom the said Dasarath Singh was liable to pay an annual revenue of Rs. 144 -8 -0. In 1930, the Zimindar of Rampur applied to the Sub -divisional Officer of Sambalpur for the sale of the right of Dasarath Singh (see Ex. 9) for realisation of the arrear revenue due to him. His application was made under Schedule 16, Central Provinces Land Revenue Act, 1881 under which any arrear due to a Malguzar can be recovered through the Deputy Commissioner as if it were an arrear of revenue payable directly to Government. The procedure for realising arrears of revenue payable directly to Government is described in Section 94 of the said Act and one of the methods of such realisation is by the sale of the mahal in respect of which an arrear accrued (see cl. (f) of Section 94). But such a sale requires the sanction of the Board of Revenue and consequently the Sub -divisional Officer in his order dated 18 -7 1931 (ex. A -l) submitted a note to the Deputy Commissioner requesting that the Board of Revenue be moved for sanctioning the sale of the property of Dasarath Singh under Schedule 16 read with proviso (1) to A. I. R. Schedule 4, C. P. Land Revenue Act. Prom a subsequent order (Ex. B -l) dated 11 -8 -1932 it appears that the sanction' of the Board of Revenue was communicated in letter No. 407R dated 8 -8 -1932 from the Commissioner to the Deputy Commissioner, Sambalpur. The sale was first held on 7 -6 -1932 and the price fetched was only Rs. 700. On 27 -6 1932 a petition was filed (Ex. 7) by one Durjodhan Singh claiming to be the guardian brother of Dasarath Singh said to be insane, objecting to the sale on the ground that the sale proclamation wa3 not properly served on the spot and that the property was sold for a grossly inadequate sum. The S.D.O. apparently felt that there was much force in this objection and, therefore, issued a fresh sale proclamation (Ex. G -l) on 22 -9 -1932 for the sale of the sixteen annas Kharposh right in Mouza Pandripathar together with the Sir and Khudkast lands attached to the same belonging to the said Dasarath Singh. In the proclamation, however, it was specifically noted that the sale was subject to the provisions of Section 108, C. P. Land Revenue Act, and a list of the encumbrances known to exist on the property was also appended to it. In due course the sale was held and the property was purchased at an auction by one Mangal Mistri on 21 -10 -1932 for Rs. 4000, The auction -purchaser was required to pay a further sum of Rs. 1433 4 -0 before the confirmation of the sale. After the confirmation of the sale by the Deputy Commissioner a sale certificate (Ex. J -1) was issued in favour of Mangal Mistri under the signature of the Deputy Commissioner himself on 10 -1 -1933. After some obstruction by some of the co -sharers of Dasarath Singh delivery of possession of the village was given to the auction -purchaser on 2 -9 -1932 (Ex. I -1). On 28 -7 -1936 the said Dasarath Singh and some of his co -sharers (who are defendants in this suit) applied to the Deputy Commissioner (ex. A 2) and withdrew the balance of the sale proceeds amounting to Rs. 1,742 13 -0. The plaintiffs are also some of the co -sharers of Dasarath Singh who were, however, not signatories to the petition (Ex A 2) dated 28 -7 -36 for withdrawal of the balance of the sale -proceeds. Their present suit is for recovery of possession of the whole village including its sir and khudkast lands on the main ground that the sale held by the S.D.O. on 21 -10 -32 (ex. C -l) was invalid inasmuch as the property was inalienable and non -transferable, They impleaded as defendants the auction -purchaser (defendant 2), the Government of Orissa (defendant l) Dasarath Singh (defendant 8) and other co -sharers who had withdrawn the balance of the sale -proceeds (defendants 4, 5 and 6). the zamindar of Rampur (defendant 7) and a subsequent transferee from the auction -purchaser (defendant 8). The impleading of the Government of Orissa was clearly wrong inasmuch as it is not the case of the plaintiffs that either the Government or its subordinate Revenue Officials entered into a fraudulent conspiracy with the other defendants with a view to defraud the plaintiffs by misusing their powers under S.116, C. P., Land Revenue Act and thus bring about a sale of the property. The Ravenue Officials merely exercised their statutory powers under the said Act and there is absolutely nothing to suggest that their action was not bona, fide. At the commencement of the hearing of the appeal Mr. Dube on behalf of the appellants properly conceded that he claimed no relief against the Government and that the latter was not a necessary party to the litigation. In view of this concession, it is unnecessary to consider the various points regarding the maintainability of the suit against the Government and the adequacy of the notice under Schedule 0, Civil P. C., which have been discussed at great length by the trial Court.
(3.) PROM the foregoing narrative, it will be clear that the crucial point for consideration is whether the sale of the village held by the S.D.O. on 21 -10 -32 (ex. c -1) was invalid. A second point which was strenuously pressed before us is whether even on the assumption that the sale was valid, the right of Dasarath Singh and his co -sharers to the sir lands of the village which ripened into an occupancy right Under Section 45 (1), Central Provinces Tenancy Act, 1892 was also transferred to the auction -purchaser by the said sale or else whether, that right remained unaffected by the sale.;

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