HARI MAHTON Vs. MSYED JAMAL HOSSAIN

JUDGEMENT

(1.) These two appeals have been heard together because the points involved in them are identical. What those points are will appear from the following brief statement of facts.

(2.) The respondent is a landlord and it appears that on 22 September, 1936, he obtained two decrees against the appellant who is the same person in both appeals. These decrees were put into execution in 1987 and the entire holdings in regard to which rent had been claimed were sold in execution of the decrees leaving portions of the decrees still unsatisfied. In August 1939, the decree-holder again put both decrees in execution for the balance outstanding. Meanwhile in June 1939, the appellant judgment-debtor had applied under the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act, 1938 (Act 9 of 1938) for the restoration of the lands sold in the previous execution cases. Orders for return of those lands were passed in September 1939, and upon payment of certain sums by the appellant, the lands were restored to him, He then applied before the Court of execution dawning that the entire decrees had been satisfied. That Court, however, rejected those applications and the orders passed by it were also affirmed in appeal by the District Judge. The appellant has now preferred these second miscellaneous appeals. The Preamble of Act 9 of 1938 shows that it was passed to provide "for the restoration to the former tenants of certain lands which were sold for arrears of rent between the first day of January 1929, and the thirty- first day of December 1937, on account of the inability of the tenantry to pay such arrears by reason of the unprecedented fall in prices between the said dates, and also for the reduction of arrears of rent in certain cases in the province of Bihar."

(3.) The Act, as its Preamble indicates, deals with two matters: (1) Restoration of lands sold for arrears of rent which is dealt with in Chap. II and (2) Reduction of arrears of rent which is dealt with in Chap. III. As we are concerned in this appeal only with the question of the restoration it is unnecessary to refer to the provisions which have been made in the Act for the reduction of arrears of rent. The only sections which need be referred to are Secs.3, 4, 5, 6 and 8. Section 3 provides that a raiyat, whose holding or a portion of whose holding was sold at any time between 1 January 1929, and 31 December 1937, in execution of a decree for arrears of rent and was purchased by the landlord of such holding and is in the possession or under the control of the said landlord, may make an application to the Collector for the restoration to him of such holding or portion within a period of one year from the date on which the section came into force. This section also states what should be the form and contents of the application. Section 4 enables the Collector to reject defective applications if the defect is not remedied within the time fixed by the Collector. Section 5 contains certain provisions as to giving notice to the landlord and Section 6 sets out the ground on which the landlord may object to the application. Section 8, which is the most important section for the purpose of this appeal, provides that if an application made by a raiyat is entertained, the Collector shall (a) determine the land which is liable to be restored to the raiyat under the provisions of this Act and (b) determine the amount which shall be payable by the raiyat for the restoration to him of such land. Then comes a proviso which runs as follows: Provided that such amount shall (i) in the case of an entire holding or, if only a portion of a holding was sold in the case of the whole of such portion, be a sum equal to the entire amount, if any, which the raiyat or any person having a claim against the raiyat may have withdrawn out of the proceeds of the sale of such holding or portion, and fifty per centum of the aggregate of the amount mentioned in the sale proclamation for the realisation of which the holding or portion was sold and of the amount of costs necessarily incurred by the landlord in connexion with his application for delivery of possession; and (ii) in the case of a portion of a holding, if the entire holding was sold, or a part of a potion, if only a portion of the holding was sold, be such part of the sum mentioned in Sub-clause (1) as the Collector may deem fair and equitable after considering all the circumstances of the case including the value of the entire land sold and of the portion to be restored.