JUDGMENT
1. We are invited in this Rule to set aside an order made under Order I, Rule 10, Clause (8), of the Code of Civil Procedure, read with Section 53 of the Land Acquisition Act, by which the name of the petitioner was directed to be struck out on the ground that he had been improperly joined as a party to a Land Acquisition proceeding pending in the Court below.
2. It appears that on the 26th May 1906, the usual declaration was made under the Act for the acquisition of the disputed properly. Notices under Sections 9 and 10 were served on the 1st September following. In the proceedings before the Collector, the parties at the beginning were the petitioner Manmatha Nath Mitter and the opposite party Rakhal Das Addy. On the 23rd September 1908, the estate which comprises the disputed property, was sold for arrears of revenue and was purchased by the petitioner Promotbo Nath Mitter. On the 17th. October 1903, Promotho Nath applied to the Collector to stay proceedings till the confirmation of the revenue sale. Two days later, this application was rejected, and on the 30th October 1908, the Collector made his award, by which the whole compensation money was given to Rakhal Das, who had set up a lakheraj title to the property. On the 10th November 1908, possession of the acquired property was taken by Government under Section 16 of the Land Acquisition Act, and from that date the title vested in Government. On the 18th November, Manmatha Nath applied to the Collector to make a reference to the Civil Courts both on the ground that the property had been under-valued arid the compensaticm had baen erroneously awarded to the alleged lakhsrajdar. On the 7th December 1908, Rakhal Das made a similar application on the sole ground that the property had been under-valued. On the 6th January 1909, Manmatha Nath withdrew his objection to the valuation of the property, and on the 21st January foil wing, the Collector made a reference to the Civil Court. “Meanwhile, on the 11th January 1909, the revenue sale had been confirmed under Section 21 of Act XI of 1859, whereupon the title vested in the purchaser Promotho Nath with effect from the date of default, that is, the 29th June 1908. Promotho Nath had not applied to the Collector to make any reference, but on the 23rd March 190 while the reference made at the instance of Manmatha Nath was pending before the Special Judge, he was added as a party to the proceeding upon his application. This order apparently was made ex parte. Subsequently, on the 7th August, Rakhal Das applied to the Court for a re-consideration of the order in question, and on the 19th August, the Special Judge recorded the fallowing order:
I do not think that my predecessor ought to have added Promotho Nath Mitter as a party, unless all the parties have given their consent; nor do I think that be would have done so had he heard the pleaders for the parties other than Kumar Manmatha Nath Mitter and Roy Promotho Nath Mitter. As, however, the name of Roy Promotha Nath Mitter has been added, I shall allow it to remain. But as his name is not mentioned in the reference made to this Court by the Special Land Acquisition Collector, I shall neither frame nor decide any issue between him and any party to the proceedings that would not have arisen had his name not been added as a party, and any money that may be found due to Kumar Manmatha Nath Mitter will be paid to him and Roy Promotho Nath Mitter jointly as contemplated by my predecessor, unless, of course, all the parties interested agree to compromise the matter.
3. Later on, on the 29th September, apparently without any application by the parties, the Land Acquisition Judge decided to review his previous order, and on the 6th October 1909, decided that Promotho Nath ought not to remain a party to the proceeding. No reasons were assigned in the order in support of the action thus taken; and the sole question in controversy between the parties in this Rule is, whether that order ought to be maintained.
4. In support of the Rule, it has been contended that Promotho Nath is entitled to be made a party to the proceeding, if not in his right as a purchaser at the revenue sale, at any rate, in his capacity as the representative-in-interest of Manmatha Nath. It has been argued, on the other hand, on behalf of Rakhal Das, that Promotho Nath ought not to be made a party even as the representative-in-interest of Manmatha, because the revenue sale, under which he claims title, was confirmed before reference was made by the Collector to the Civil Court, and he had thus ample opportunity to ask for a reference on his own behalf. It has further been contended that even if he is added as a party, he should not be allowed to claim the position of a purchaser at a Revenue Sale. Finally, it has been suggested that if the order of the Land Acquisition Judge be regarded as erroneous, this Court ought not to interfere in the exercise of its revisional jurisdiction, in view of the decision in Rabbaba Khanum v. Noorjehdn Begum 13 C. 90.
5. In support of the first contention of the learned Vakil for the opposite party, reliance has been placed upon the cases of Aim Bahar v. Peary Mohan Mukerjee 34 C. 451, Gobinda Kumar Roy v. Debendra Kumar Roy 12 C.W.N. 987, Muhammad Safi v. Haran Chandra Mukerjee 12 C.W.N. 985 and Prabal Chandra Mukherjee v. Raja Peary Mohun Mukherjee 12 C.W.N. 987. None of these cases, however, is directly in point, and the principle deducible from them has, in our opinion, no application to the circumstances of the present case. In the first of these cases, it was ruled that in a proceeding under the Land Acquisition Act, a party who had raised no objection to the apportionment of compensation as made by the Collector, must be taken to have accepted the award in that respect, and such a party who has not obtained a reference cannot invite the Civil Court to decide a question for the trial of which no reference has been made. In that case, there was a dispute before the Collector about the apportionment of the compensation money between the zemindar, his tenants, and the undertenants. The tenants were dissatisfied with the decision of the Collector and obtained a reference to the Civil Court. The zemindar then contended that the tenants had not only no grievance but had actually obtained more than what they were legitimately entitled to get and that, therefore, the amount payable to them ought to be reduced. The Land Acquisition Court investigated into this matter and increased the amount of compensation paid to the zemindar. On appeal to this Court, it was held that the proceeding was wholly irregular and that the zemindar who was apparently satisfied with the order made by the Collector as he did not ask for a reference, could not, upon a reference made at the instance of the tenant, obtain a reversal or modification of the order of the Collector in so far as it was in favour of the tenant. The principle which underlies this case has obviously no application to the case before us. In the second case upon which reliance is placed, it was ruled that where the reference to the Civil Court related to a dispute about the apportionment of compensation between two parties A and B, the Special Judge was not competent to join as parties to the proceeding C and U and thus examine questions not included in the reference by the Collector. To the same effect are the two other cases to which reference has been made by the learned Vakil for the opposite party. The principle which underlies these oases is that the Civil Court is restricted to an examination of the question which has been referred by the Collector for decision, and that the scope of the enquiry cannot be enlarged at the instance of parties who have not obtained any order of reference. In the case before us, the position is entirely different. Here the reference was obtained at the instance of Manmatha Nath. At the time he made the application for a reference, he was still the owner of the property, because the Revenue sale had not been confirmed; and as proceedings were pending in. the Revenue Court for reversal of the sale, it was still a matter of uncertainty whether the sale would be ultimately confirmed. No doubt, the sale was confirmed before the order of reference was actually made by the Collector; bat it has not been suggested that this circumstance does, in any way, invalidate the reference made by the Collector at the instance of Manmatha Nath Mitter. It is reasonably plain that as soon as the revenue sale was confirmed, title vested in the auction-purchaser with effect from the date of default, and although as such purchaser, he acquired a higher status than that of the defaulting owner, yet he was free to take up the position of a mere representative-in-interest of such defaulter. If he chooses to take up that position, there is no conceivable reason why he should not be added as a party to the proceedings. If he is not made a party to the proceedings, it is not improbable that the reference may lapse for want of active prosecution, because after the sale has been confirmed, and Manmatha Nath has ceased to have any subsisting interest in the property acquired, he may not care to support the reference made at his instance, by the Collector. We must, therefore, hold that the learned Special Judge was in error in holding that the petitioner ought not to continue to be a party to the proceedings.
6. The second question which requires consideration is, as to the precise scope of the enquiry to be held at the instance of the petitioner when he is added as a party to the proceedings. It has been argued on behalf of the opposite party that if the petitioner, is brought on the record as the representative-in-interest of Manmatha Nath, he ought not to be allowed to urge any ground not open to Manmatha Nath himself. On the other hand, it has been contended on behalf of the petitioner that once he is made a party he ought to be allowed to urge every ground that is open to him in his capacity as a purchaser at a sale for arrears of revenue. In our opinion, this contention is not well founded. The cases to which reference has been made, show that a person, who is a stranger to all the parties to the reference, should not be made a party to the proceeding. In so far, as the petitioner claims to be a purchaser at a sale for arrears of revenue and as such purchaser sets up a title superior to that of the defaulter, he may properly be regarded as a stranger to the proceedings. No ground, therefore, should be allowed to be urged by him which would not haw been equally open to Manmatha. It has been suggested, however, by the learned Vakil for the petitioner that the result of this view would be that is the event of possible defeat in the person proceedings, he would be driven to a separat suit to establish his rights as a purchaser at a revenue sale. That may, no doubt, be a possible contingency, but, in our opinion, that consideration ought not to induce us to order that he should be joined as a party to the proceedings in his character as the representative-in-interest of Manmatha and then to allow him to urge grounds which would not have been open to the person whose interest he claims to have acquired. Besides it is obvious that the rights of the petitioner would not be prejudiced in any way, for Sections 18, 21 and 31 of the Land Acquisition Act show that the petitioner would be entitled in a separate suit to assert his rights as an auction-purchaser. Of these, Section 18 provides for a reference for apportionment of the compensation, while Section 21 lays down that the scope of the inquiry in every such proceeding shall be restricted to a consideration of the interests of the persons affected by the objection; and the third proviso to Clause (2) of Section 31 states that nothing herein “contained shall affect expressly the liability of any person who receives the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.” Here the petitioner has obviously a two-fold capacity. As a representative of Manmatha Nath, even though his benamdar, as faintly suggested by the opposite party, he would be entitled to urge every ground open to Manmatha Nath, himself. But in a higher capacity, namely, as a purchaser at a sale for arrears of revenue, if he is not the binamdar of Manmatha Nath, he would be entitled to assert more extensive rights. There is no reason, therefore, why he should not have a regular suit open to him for assertion of his right as revenue-sale purchaser. The second contention of the opposite party must, therefore, prevail.
7. The third point which requires consideration is as to the competency of this Court to set aside the order of the Court below in the exercise of its revisional jurisdiction. It has been suggested that in the case of Rabbaba Khanum v. Noorjehan Begum 13 C. 90, it was ruled by this Court that when an order has been made by a subordinate Court striking out the name of a person from the record s having been improperly joined, the. case oes not fall within the scope of Section 622 of the Code of 1882. An examination of the judgment in that case, however, shows that no such comprehensive proposition was intended to be laid down On the other hand, it is clear from the case of Khetttramoni Dasi v. Shyama Churn Kundu 21 C. 539, that if an order of this description has Been improperly made, it is competent to this Court to interfere. In our opinion, there can be no reasonable doubt that in the present instance the learned Judge has acted in the exercise of his jurisdiction illegally and with material irregularity so as to justify and necessitate the interference of this Court.
8. The result, therefore, is that this Rule must be made absolute and the order of the Special Judge made on the 6th October 1908, set aside. The effect will be that the name of the petitioner will be restored as that of a party to the proceedings. The petitioner is entitled to the costs of this Rule. We assess the hearing fee at two gold mohurs.
9. It is conceded that this order will apply to the three other Rules (Nos. 3894, 3895, 3896 of 1909) which will, therefore, be made absolute, with costs; nut the hearing fee in each of these cases will be assessed at one gold mohur.
