F.F. Christian vs Prasad Raut and Others

Ross, J.—In Appeals No. 663 and 680 to 687 of 1922, the appellant is the plaintiff in certain suits for rant against the defendants. The suits out of which these appeals arise were either wholly or partially dismissed. In Appeals Nos. 566 and 732 to 737 of 1922, the tenants are the appellants, these suits having been decreed against them. The plaintiffs sued for the rent for years 1324 to 1327 as being mokarraridars of certain shares in taluka Gadi mahesri. His title arose in various ways by private purchase, by lease and by mortgage from the co-sharers in the mokarrari and also by purchase in execution of two decrees. The execution cases in which these last purchases were made were No. 78 of 1913 and No. 253 of 1913 and it is with the shares purchased in these executions that the present controversy is concerned. The case for the plaintiff is that he purchased an interest in the mokarrari of the entire taluka Gadi mahesri. The case for the defendants is that the purchases were confined to shares in the mokarrari of mouza Gadi mahesri only and as the suits relate to villages in the taluka other than mouza Gadi mahesri the defendants denied that the relation of landlord and tenants existed between the plaintiff and themselves so far as the interest claimed to have been purchased in these executions extends to these villages. The learned Munsif who tried the suits disallowed the plaintiff''s claim under both executions. The learned District Judge on appeal disallowed the claim under Execution Case No. 78 of 1913 but allowed it so far as Execution Case No. 253 of 1913 was concerned. Consequently there are appeals by both parties. I shall deal first with the plaintiff''s appeals. The relevant documents are the petition for execution (Exhibit 19), the writ of attachment (Exhibit 24), the sale proclamation (Exhibit 25), the writ of delivery of possession (Exhibit 18) and the sale certificate (Exhibit 21). The petition for execution shows that execution was sought in respect of certain shares in Dakshinwari khut, khut Kalan and Uttarwari khut in taluka Gadi mahesri, asli mazi dakhli including tolas, chaks, kitas, houses, jungles, hills, mines, etc., together with the surface and sub-soil rights appertaining to the lands of the said taluka held in perpetual mokarrari, tauzi No. 327. The jama sadar of the entire taluka along with that of nisf Katauna is stated and also the gross annual jama of the shares proceeded against and their respective values. The writ of attachment follows the petition for execution exactly and the sale proclamation is in similar terms. The report of the peon who delivered possession of the property purchased in execution states that he reached mouza Gadi mahesri and put the decree-holder auction purchaser in possession of the mahal. The receipt for delivery of possession granted by a servant of the auction-purchaser states that the peon arrived at mouza Gadi mahesri and delivered possession of the perpetual mokarrari right noted in the writ of delivery of possession. From the first three of these documents therefore it is clear that what the decree-holder proceeded against in execution and what the Court attached and proclaimed for sale was certain shares in three khuts of taluka Gadi mahesri and the report of delivery of possession is not inconsistent with these documents. The sale certificate, however, while following the earlier documents in other respects in close details, contains the words mouza Gadi mahesri instead of taluka Gadi mahesri and it is on this solitary expression that the whole defence in these suits has been based.

Now the law on the subject is clear and undisputed. As Lord Watson observed in Pettachi Chettiar v. Sanili Vira Pandia Channatambiar (1887) 10 Mad. 241 the question is, "What did the Court intend to sell; and what did the purchaser understand that he bought." In Balvant Babaji Dhondge v. Hirachand Gulabchand Gujar (1903) 27 Bom. 334, there was a mortgage decree directing that the interest of five brothers in the mortgaged property should be sold. The proclamation of sale followed the decree but in the sale certificate, the name of one of the brothers only was mentioned. The learned Judges there pointed out that there was nothing in the Code which made a certificate of sale conclusive as to property sold; that in granting a certificate, it is the duty of the Court not to determine what property is to pass by the sale but merely to record the already accomplished fact of a transaction that has taken place and to state what has been sold. The Court has no power to do more or to alter the fact of the sale which has actually taken place. Its action in granting the certificate is ministerial and not judicial. It is pointed out that the sale is an offer and acceptance that the offer is made by the Court and is advertised by the proclamation of sale: and that so far as concerns the identification of the property to be offered for sale, this is the only declaration which is authorised or required. In Thakur Barmha v. Jiban Ram Marwari (1914) 41 Cal. 590 its which there was a conflict between the sale proclamation and the certificate subsequently granted it was held by the Judicial Committee that what is sold at a judicial sale can be nothing but the property attached and that that property is conclusively described in and by the schedule to which the attachment refers. As against such description it was held that the certificate of sale had no effect. Unless therefore there is something to show (and it is not suggested in the present case that there is anything) that the Court sold something else than was advertised for sale, the sale proclamation is conclusive. This being the law, it seems dear that if the petition for execution, the writ of attachment and the sale proclamation are clear and unambiguous, any discrepancy from the description of the property contained in these documents which occurs in the sale certificate can have no effect. Then the sale certificate itself is by no means unambiguous and it is not necessary to suppose that it was intended to refer to a different property. The term "mauza" might include the whole mahal and from the fact that the tauzi number is given this was apparently the intention. A village which was merely a constituent of the mahal would not have a tauzi number. The learned Munsif based his decision entirely on the fact that the annual jama as stated in the various documents was much lower than what the annual jama of the whole mahal would have been and was more likely to be the jama of the single village. The learned District Judge has also accepted this argument and has further proceeded on the ground that the price paid seems to be far too low for a share in the entire taluka. Now even if the jama is misstated, if the document is otherwise unambiguous, this then would be disregarded as misdescription. But there are in truth no materials for the conclusion that the jama stated in these documents is the jama of mouza gadi mahesri rather than of the entire mahal. The learned Munsif seems to have confused the jama with the annual income. The sale proclamation and other documents do not pretend to state what the annual income of the share is. The learned Munsif has pointed out that the cash rental of mouza gadi mahesri is about Rs. 600 and that there are more than 250 acres of kamat lands and there is also batai land. Now the produce of kamat lands would not naturally be included in the term jama and there is nothing to show that the income of the batai land is Moreover there are no materials whatsoever for estimating the jama of the entire taluka; and the ground upon which the Munsif had decided this case must therefore be treated purely speculative and it is not warranted by the terms of the documents themselves.

With regard to the observations of the learned District Judge on the price, it may be that the property was purchased cheap but there may be many reasons for that. It is impossible to say on the material before us how low the price was and this is no criterion for construing the documents. It seems to me that this is a very plain case which does not admit of doubt; the documents with the doubtful exception of the certificate of sale are all consistent with only one conclusion, namely, that what was purchased was a share in the entire taluka. But the decisions above cited show that the certificate of sale cannot override the other documents which are conclusive as to the property actually sold.

The learned Vakil for the respondents contended that the case is concluded by findings of fact. In my opinion this is not so. It is true that the learned District Judge has mentioned the execution petition and the writ of attachment and the sale proclamation in stating the argument on behalf of the plaintiff but there is nothing to show that he considered these documents or their legal effect. I would therefore allow these appeals with costs.

With regard to the appeals of the defendants, the ground upon which the Munsif limited the purchase in Execution Case No. 253 of 1913 to a share in mouza gadi mahesri was that the shares mentioned in the sale certificate in this case are the shares which were actually owned by the judgment-debtors in that village, whereas they had different shares in the different villages constituting the taluka. He was therefore of opinion that the proceedings in execution must be limited in their operation to mouza gadi mahesri alone. The learned District Judge has properly refused to give effect to this argument pointing out that, if in fact the judgment-debtors have larger shares in some of the villages than those stated in the sale proclamation, the excess will not be affected by the sale. In this case all the documents are consistent and leave no room for doubt that the shares which were proceeded against in execution and were attached and proclaimed for sale and sold were the shares of the judgment-debtor in the entire taluka. It was suggested that the learned District Judge has erred in his calculation of the price because he has under-stated the shares that passed by the sale. But as I have pointed out in dealing with the plaintiff''s appeals, there are no materials for ascertaining the real value of this property; and in any case if the purchaser purchased at a low price, that is not a matter which affects the present question.

The defence in these suits appears to me to be entirely without merit and to rest on nothing better than a clerical mistake in a document of minor importance.

The result is that the plaintiff''s appeals must succeed and are allowed with costs and the suit out of which these appeals arise must be decreed in full with costs throughout. The tenants'' appeals are dismissed with costs.

Mullick, J.

I concur entirely. It was argued that this being a second appeal it was not competent to us to interfere with the District Judge''s finding in regard to the identity of the property which was sold. The answer to this is that as the finding relates to a mixed question of fact and law it is open to revision in second appeal.