Anand Prasad vs Gopal Das and Another

Sen, J.—This application arises out of a claim case. The opposite party obtained a money decree against Beni Prased and Thakur Prasad, two brothers, for Rs. 74,000. The applicant is the son of Thakur Prasad and the nephew of Beni Prasad, In execution of this money decree certain properties alleged to belong to, and to be in the possession of, the applicant were attached by the decree-holder opposite party. Thereupon the applicant made a claim to those properties. His case was that he had advanced to Beni Prasad and Thakur Prasad the sum of Rs. 1,00,000 which he had received at the time of his marriage and that, being unable to repay the amount to the applicant the judgment-debtors Beni Prasad and Thakur Prasad, on the 13th January, 1926 executed a sale-deed in favour of the applicant in respect of the properties which are the subject-matter of the attachment and that he has since been in possession thereof.

The question, therefore, for determination is whether on the date of attachment the properties in question were in the possession of the applicant or in that of the judgment-debtors. The decree, in execution of which the properties were attached was passed in April, 1926, and attachment was effected in May 1926. The properties under'' attachment are divisible into three classes. Properties Nos. 7, 8 and 9 are bungalows in Khagaul in the occupation of tenants. Properties Nos. 5, 6, 10, 11 and 12 are houses situate within the Patna City Municipality. Properties Nos. 1, 2, 3 and 4, are revenue-paying properties being comprised within four touzis, Nos. 6273, 15545, 7493 and 11890.

The learned Subordinate Judge has coma to the conclusion that, at the date of the attachment the applicant was not in possession of the properties in question. In view of this fact it is contended by the learned advocate appearing for the opposite party that this Court should not interfere in revision, specially, having regard to the fact that the Statute provides for another remedy, namely by suit under Order 21, Rule 63.

On the other hand it is contended by learned Counsel appearing for the applicant that though the learned Subordinate Judge has purported to address himself to the question of possession, yet, in point of fact, what he has really done is to direct his attention primarily to matter other than those falling within the scope of a claim case under Order 21, Rule 58. The only reason why the learned Subordinate Judge could possibly coma to the conclusion that ha has is that ha was really obsessed with the idea that there was a benami transaction underlying the whole affair, and, acting from this point of view, he has brushed aside and disregarded the evidence as to possession. It is, therefore, necessary to inquire whether there is any substance in this '' contention of the applicant.

Turning to properties Nos. 7, 8 and 9: I find that the tenants who were in occupation of the bungalows have come and given evidence. They speak to the fact that up to January 1926, the judgment-debtors were the proprietors and in possession, but that after that date the claimant was in possession, that receipts were given in the name of the claimant from January 1926. One Bihari Lal has and given evidence to the effect that he used to collect the rent before January 1926, on behalf of the judgment-debtors; but after January 1926, he collected them on behalf of the claimant and used to send the rent to the claimant.

Ordinarily this would constitute good evidence of possession and in the absence of anything pointing to the contrary would suffice for a claim put forward under Order 21, Rule 58, Civil P.C. But the learned Subordinate Judge is dissatisfied because, as he put it, "the evidence of these witness does not show into whose hands the rent actually came." With respect to the second class of properties, lots Nos. 5, 6, 10, 11 and 12, namely, those within the Patna City Municipality, the evidence that has been adduced is oral as well as documentary. The receipts, Municipal registers and all such documents as are necessary to prove possession have been adduced in evidence.

The Municipal tax-collector has also come to the box to give evidence and has deposed that the claimant has got his name entered in the Municipal office registers. This evidence, to my mind, ought to suffice for establishing possession in a claim case. But the learned Subordinate Judge does not feel inclined to rely on it and the reason given is that the claimant is one at the Commissioners of the said Municipality and that thus the said witness is more or less under his control.

Even so, it is difficult to imagine how the documentary evidence, namely Municipal registers, receipts etc, comes to nothing.

Turning to the evidence with repeat to lots 1, 2, 3 and 4, it appears quite clear that the prima facie evidence of possession is equally satisfactory. In regard to lots 1 and 2 forming touzis Nos. 6273 and 15545, and making up mauza Kandap, the patwari and the Tahsildar have been called. The latter, has given evidence that he sent the collections by him to the claimant. Tenants have been called to prove that they paid rent to the claimant, and receipts obtained by them from the claimant have been put in. The claimant could hardly have done anything more.

But two circumstances are pointed out which, in the estimation of the learned Subordinate Judge, outweigh all this evidence. The one is that in execution of a decree against a thikadar obtained by the former owners, the judgment-debtors, delivery of possession was to be given of the mauza and, the mutation not having taken place, such delivery of possession was taken by the judgment debtors whose names stood recorded till March 1926. This fact is not by itself inconsistent with possession, unless there is something else to point to the contrary The other circumstance is a petty criminal case which was instituted by a servant of the judgment-debtors who had cultivated a small area in the village and whose crops had been carried away by the said thikadar.

Regarding lots Nos. 3 and 4, abundant, evidence of possession has been given, but the learned Subordinate Judge cannot rely on it. The main reason for disbelieving is that, whereas the thikadar called by the claimant as a witness say that in lieu of thika rent he sent rice to the claimant,

there are no materials in the record to prove that the rice did not as well reach the hands of the judgment-debtors.

Now, if the learned Subordinate Judge had approached the claim case from the right point of view, I have no doubt that this Court would have had no occasion whatsoever to interfere. But it seams quita clear to me that the learned Subordinate Judge has, in disregarding all this evidence of obsession, really been influenced by several considerations.

The first is the relationship between the petitioner and the judgment-debtors.

The second is the allegation that the sale was only a paper transaction and that no consideration passed. In other words, although the petitioner was the ostensible owner, the real owners ware the judgment-debtors. Thirdly, the petitioner and the two judgment-debtors might be members of a joint family. If so, it would throw doubt on the validity of the allege transaction of sale. On this point the learned Subordinate Judge observes:

The claimant, as well as the judgment-debtors, do not coma forward to give their evidence in the case, and I do not find good materials in the record to hold that shay are not members of as undivided family.

Lastly, there is the suspicion that there must have been some transaction behind the scenes which would, if disclosed, show that the transfer of January 1926 was a transfer in fraud of creditors. These are matters altogether outside the scope of an inquiry under Order 21, Rule 58. I have no hesitation in coming to the conclusion that the learned Subordinate Judge approached the case from a point of view which may be quite justifiable in a title suit, but which is not within the scope of a summary investigation as to possession contemplated by Order 21, Rules 53, 59 and 60. True, this Court will not interfere ordinarily in revision in a case where there is another remedy provided by statute; but where it is quite clear that, although purporting to deal with the question of possession, the Court has really been considering questions of benami, joint family and transfer in fraud of creditors, or rather, being materially influenced by suspicions relating thereto, I think it is right that this Court should interfere.

This view is supported by numerous rulings, among others, in the case of Monmohiney Dassee v. Radha Kristo Dass [1902] 29 Cal. 543 and in the case of Phomon Singh v. A.J. Wells AIR 1923 Rang. 195. The observations of this Court in the case of Raghunandan Prosad Misra v. Ram Charan Manda [1919] 4 Pat. L.J. 94 are also in support of the view that the High Court, in a proper case, may and should interfere in revision even when there is another remedy open to the applicant.

The order of the learned Subordinate Judge is set aside. The properties must be released from attachment. The applicant is entitled to his costs. Hearing-fee four gold mohurs.