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Appeal from Appellate Decree No. 162 of 1962, decided on 29th June 1966.

--Under tenure ‑ Annulment of. by auction ‑ purchaser at revenue sale‑Prerequisites‑Expression of intention to avoid incumbrance and bringing such intent‑on to knowledge of incum brancer‑Formal written notice expressing such intention not essential‑Unequivocal act indicating such intention, sufficient -Institution of suit for ejectment held, positive indication and sufficient notice of intention to annul "when summons is served on defendant"‑[Khalil Ahmed Chowdhury v. Muhammad Shamsul Anwar Choudhury and others P L D 1959 Dacca 509; Monmohan Chowdhury v. Messrs Turner Morrison & Co. 33 C W N 930; Shahodra Mudiali v. Nabin Chand Poral 19 C W N 1030 and Srimati Krishna Kalyani v. R. Braunfeld 20 C W N 1028 ref.].

‑Acquisition by Government of all rent receiving interests, by notification‑Suit by purchaser at revenue sale for annulment of under‑tenure and delivery of khas possession‑Summons on incumbrancer served after date of notification‑Taluki rights of purchaser held, had already vested in Provincial Government and suit teas not maintainable.

Md. Mozammal Huq for Appellants.

A. S. Mofaker for Respondent No. 1,

This appeal is directed against the decision of a Sub ordinate Judge, Chittagong, reversing the judgment and decree of the learned Munsif, Satkania, in a suit for khas possession of the land described in the Schedule to the plaint on establishment of the plaintiff's maliki right thereto on the basis of purchase at a revenue sale. Plaintiff's case briefly is that the' defendants had an etmam appertaining to Bajeapti taluk No. 33008 Tripura Sundari of the Chittagong Collectorate which was auction purchased by the plaintiff at a revenue sale held on 28‑11‑54. The sale was confirmed on 29‑6‑55 and thereafter the plaintiff obtained delivery of possession of the taluk on 5‑10‑55. The plaintiff having come to know that the defendants were in possession of the land without having any protected interest therein demanded possession but the latter did not give up possession in his favour in spite of demand.

The suit was contested by defendants 1, 26 and 27 who claimed protected interest in the suit land and denied plaintiff's alleged auction‑purchase and demand to the defendants to quit possession in his favour. They further raised a plea that the plaintiff's alleged interest having vested by the process of acquisition of all rent receiving interests in the Provincial Government in the meantime, the plaintiff has no locus standi to maintain the suit.

The relevant finding of the learned Munsif was that as the present suit was filed on 12‑4‑56 and the taluk in question vested in the Provincial Government on and from 14th April 1956, in view of the acquisition of all rent receiving interests by the Government before service of summons in this suit, the plaintiffs intention to annul the encumbrance was not made known to the defendants before his right to recover possession was taken away by the Government by operation of law. Hence he dismissed the suit.

On appeal, the learned Subordinate Judge held that the intention to annul the encumbrance in the present case was sufficiently expressed by the auction‑purchaser by instituting the present suit for ejectment against those who were found in actual possession of the land. He further held that the institution of the present suit was also a sufficient notice to the defendants as to the intention to annul the encumbrance. He took the view that on the institution of the suit for khas possession on 12‑4‑56 the land became the khas land of the plaintiff. He accordingly decreed the suit reversing the decision of the trial Court.

The point which requires consideration in this appeal is whether mere institution of a suit for khas possession of the land in possession of the under tenure holders, before service of summons on the defendants is sufficient to cancel the under tenure.

Reference has been made to the case of Khalil Ahmed Chowdhury v. Muhammad Shamsul Anwar Choudhury and others (P L D 1959 Dacca 509)

In that case after a review of a number of judicial decisions Khan, J. observed:

"Thus it would appear from the principle of law laid down above that no particular method of expressing an intention to annul is necessary and unequivocal act is sufficient which indicates the intention to annul and which brings that intention to the knowledge of the under tenure‑holder. The finding of both the Courts below is that there was unequivocal Act or the part of pro forma defendant No. 4 expressing his intention to annul the incumbrance and that it was known to the tenure‑holders including defendant No. 1. I have already referred to the evidence adduced in this case by the plaintiff which undoubtedly goes to show that there was an unequivocal act on the part of the revenue purchaser which indicates his intention to annul the tenure in question and that it was known to defendant No. 1. Furthermore, I must state here that the institution of this suit by the plaintiff after he took settlement from the auction purchaser is also a sufficient notice to the defendant as to the intention to annul the incumbrance."

In view of this decision Mr. Mofakher representing the respondent has urged that mere institution of the suit by the auction‑purchaser for khas possession of the land is a sufficient notice to the defendants as to the intention to annul the incumbrance. The contention of Mr. Mozammel Huq, learned Advocate for the appellants, on the other hand, is that institution of a suit postulates service of summons on the defendants and unless and until summons have been served it would be absurd to contend that the intention to annul has been brought to the knowledge of the defendants. He has urged that the real meaning and significance of the observation of the learned Judge in the P L D 1959 Dacca 509 case is that institution of a suit for khas possession of the land which is followed by service of summons is a sufficient notice to the defendants as to the intention to annul the incumbrance.

In order to ascertain the true import of the aforesaid decision, it is necessary to refer to and consider the important cases on which reliance has teen placed by the learned Judge.

In the case of Monmohan Chowdhury v. Messrs Turner Morrison & Co. (33 C W N 930). a Division Bench of the Calcutta High Court held that for annulling an incumbrance on a property purchased at a revenue sale, it is not necessary to serve a notice : it is sufficient if the purchaser gives unequivocal expression of his wish to annul which may be done by bringing a suit in ejectment. B. B. Ghosh, J. delivering the judgment of the Court after considering several earlier decisions observed

"It seems to me, therefore, that in order to enable the auction‑purchaser at a revenue sale to get possession of the property on which there is an incumbrance' which he is entitled to annul, it is sufficient for him to bring a suit against the person in actual possession, by which act he expresses his unequivocal intention to avoid all subsisting rights which he can annul, as he seeks to take direct possession of the property sued for . . . . .. . . . . The defendant can, however, resist the plaintiff by showing that he holds under a third person whose interest the plaintiff cannot annul. But the suit cannot b: defeated merely on the ground that the defendant claims under a third person who has not been made a party to the suit or on whom the plaintiff did not serve any notice."

A Division Bench of the Calcutta High Court held in the case of Shahodra Mudiali v. Nabin Chand Poral (19 C W N 1030) that no formal notice of annulment by the purchaser is required to avoid an incumbrance or under tenure and any unequivocal act is sufficient which indicates the intention to annul and which brings that intention to the knowledge of the under tenure‑holder.

In the case of Sm. Krishna Kalyani v. R. Braunfeld (20 C W N 1028) is has been pointed out that it is not essential on the part of the auction‑purchaser who seeks to annul an incumbrance to give a formal written notice to avoid it, and that all that is necessary is to notify to the incumbrancer by some unequivocal act the intention to annul.

A careful analysis of the judicial pronouncements con clusively shows that the intention to annul an incumbrance should be brought to the notice of the person in actual possession of the property. ‑Even in the case of Monmohan Choudhury v. Messrs Turner Morrison & Co. mention of the fact that the defendant can resist the plaintiff by showing that he holds under a third person is indicative of the fact that institution of a suit in ejectment in which defendants have been served with summons is a sufficient notice of the inten tion as to annulment. In the P L D 1959 Dacca 509 case itself the learned Judge held that any unequivocal act is sufficient which indicates the intention to annul and which brings that intention to the knowledge of the under tenure‑holder. Thus the principle of law that the intention should be brought to the knowledge of the under tenure holder has been accepted in that case also. Thereafter the learned Judge made the obser vation that:

"the institution of this suit by the plaintiff after be took settlement from the auction‑purchaser is also a sufficient notice to the defendant to annul the incumbrance. "

It may be remembered that in that case both the trial Court and the Court of first appeal found that there was unequivocal act on the part of the pro forma defendant No. 4 expressing his intention to annul the encumbrance and that it was known to the tenure holders and the High Court also came to such a conclusion. The learned Judge held, in the facts and circumstances of that particular case, that the institution of the suit by the plaintiff in that case was also a sufficient notice of the intention to annul the incumbrance. The proper con struction of the decision in the P L D 1959 Dacca 509 case is that institution of a suit in ejectment where summons has been served on the defendant is a sufficient notice of the intention as to annul ment of the incumbrance.

The exact position of law, therefore, is this: There are two prerequisites for annulment of an under-tenure by the auction‑purchaser at a revenue sale firstly, that there should be an expression of intention to avoid the incumbrance, and secondly, the intention to annul should be brought to the knowledge of the incumbrancer. There is no particular method of expression of the intention and formal written notice expressing the intention as to annulment is not essential but any unequivocal act indicating such intention sufficient to annul. Institution of a suit in ejectment is an unequivocal act which positively indicates the intention to avoid an incumbrance and it is also a sufficient notice of the intention to annul when summons is served on the defendant, i.e. when the defendant comes to know of the suit.

In the instant case the accepted position is that the defendant were not served with summons before the 14th April 19"6, i.e. the date of acquisition of all the rent receiving interests in the Province with effect from which date the property vested in the Provincial Government by operation of B law. Plaintiffs taluk right vested in the Provincial Govern ment on and from 14th April 1956 before service of summons of the present suit, instituted on 12‑4‑56, on the defendants. The plaintiff's suit (the present suit) for khas possession of the suit land is thus bound to fail.

In the result, the appeal is allowed. The judgment and decree of the Court of appeal below are set aside and those of the learned Munsif are restored. I, however, leave the parties to bear their own costs of this appeal.

The prayer for leave to appeal under clause 15 of the Letters Patent is refused.

S. E./A. H.

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