Gopal Misser and Others vs Partap Mandal and Phekan Singh and Others

Das, J.—One Phekan Singh, who has been cited as defendant No. 12 in this action, held a raiyati holding of 244 bighas on a rental of Rs. 41-12-0. The landlord instituted a rent-suit against Phekan Singh and recovered a decree as against him. In execution of that decree he caused the holding to be sold and it was, as a matter of fact, sold to defendant No. 15 for Rs. 500. On the 13th of December 1912, so it is alleged by the plaintiffs defendant No. 15 obtained delivery of possession. The plaintiffs'' case is that defendant No. 15 was their benamidar, and that they obtained possession of Phekan Singh''s holding on the 13th of December 1912, and was dispossessed by defendants Nos. 1 to 13 acting in collusion with each other in April 1916. The suit, out of which the appeal arises was thereupon instituted by the plaintiffs for recovery of possession of the disputed lands, which are specified in schedules A and B, and for mesne profits. The defendants Nos. 1 to 11 claimed to be in possession of 30 bighas of land set out in schedule A under a conveyance executed in their favour by Phekan Singh. Defendant No. 13, it appears, has taken a conveyance of schedule No. A lands from defendants Nos. 1 to 11. Their conveyance is dated the 5th of January 1918. Defendant No. 12 is the origirfcal tenant, Phekan Singh, and he claims title to 15 bighas of land set out in schedule B by virtue of a compromise with the plaintiffs in a certain criminal proceeding. The defendants filed separate written statements in which they denied that they acted in collusion with each other. Defendants Nos. 1 to 11 disclaim all interests in schedule B lands, and defendant No. 12 disclaims all interests in Schedule A lands.

The learned Subordinate Judge in his judgment has recorded a finding to the effect that the defendants did not act in collusion with each other. He has also disbeleived the case of the plaintiffs that they obtained possession of the disputed lands on the 13th of December 1912, and that they were dispossessed in April 1916. According to the learned Subordinate Judge the plaintiffs never at any time obtained possession of the disputed lands although in his view they arc undoubtedly entitled to possession thereof. In the result he has given the plaintiffs a decree for possession of schedule. A lands and for mesne profits as against defendants Nos. 1 to 11, and against defendant No. 13. In regard to schedule B lands he has come to the conclusion that the case of the defendant No. 12 is substantially correct. Accordingly, he declined to give the plaintiffs any decree for possession in respect of schedule B lands.

Defendants Nos. 1 to 11 have appealed to this Court and the plaintiffs have presented a cross-objection as against the finding of the learned Subordinate Judge that the plaintiffs have failed to establish their case in regard to schedule B, lands as against defendant No 12. Mr. Sushil Madhab Mullick on behalf of the appellants takes the point that, in the circumstances to be at once mentioned, the plaintiff'' suit was not maintainable, and that it should have been dismissed by the learned Subordinate Judge.

I have already said that the ostensible auction-purchaser was defendant No. 15. The case of the plaintiffs is that defendant No. 15 was their benamdar, and that the purchase was made by them although in the name of defendant No. 15. In this view the plaintiffs cited the auction purchaser as a defendant in the action Defendant No. 15, however, filed a written statement in which he claimed a beneficial interest m the property purchased. In other words, he wholly denied the claim of the plaintiffs that in the matter of the auction purchase he acted as the benamidar for the plaintiffs. Now, this was the position up to the 31st of May 1920. On that date the plaintiffs presented a petition to the Court asking the Court to dismiss defendant No. 15 from the action Thereupon, the Court directed that the name of defendant No. 15 should be struck off from the record of the suit. The contention of Mr. Sushil Madhab Mullick is, that the suit could not proceed in the absence of defendant No 15. He says that it is not right that he should be subjected to another action at the instance of defendant No. 15, and that it is only right and proper that his liability, if any, should be determined in the presence both of the plaintiffs and of the defendant No. 15. In my opinion, the objection is one that should have been taken in the Court below. It does not appear from the order sheet or the judgment of the learned Subordinate Judge that it was ever contended before the Court below by the plaintiffs that the consequence of dismissing defendant No. 15 from the record of the suit was that the suit could not proceed. Had the defendants taken this point in the Court below it would have been open to the plaintiffs to bring defendant No 15 again on the record. That objection was not taken, and it is quite impossible for us in this Court to entertain an argument as to non-joinder of parties. Mr. Sushil Madhab Mullick explains to us that his point is not that the suit should be dismissed; but that his liability should be determined in the presence of defendant No. 15. But as, for the reasons to be presently stated, we have come to the conclusion that the defendants Nos. 1 to 11 are not liable for mesne profits, it is wholly unnecessary to examine the contention of Mr. Sushil Madhab Mullick.

It is next urged by Mr. Mullick that the sale-certificate which is the document of title of the plaintiffs has not given the plaintiffs any title to schedule A lands. The argument is founded upon the evidence of one of the plaintiffs, to be found at page 21 of the paper-book. Praftab Mandal, one of the plaintiffs, giving evidence in the suit said as follows. "The entire jote of Phekan is in 7 dags. Only 3 big dags are in the sale-certificate but are in my possession. Those 4 dags. The other four dags are not in the sale-certificate; are 40 to 50 bighas in area. I took delivery of possession according to the sale-certificate. At the time of auction-sale I did not know that there were 4 other dags besides the 3 dags that were to be sold. It was at the time of taking delivery of possession I came to know of the other 4 dags. Now this evidence establishes that he took delivery of possession of the entire area, namely, 244 bighas; but that the sale-certificate mentioned only 3 dags, and it does not mention the other 4 dags which are undoubtedly included within this block of 244 bighas.

In order to succeed, Mr. Mullick must establish that the sale-certificate has not given the plaintiffs any title to schedule A lands. In my opinion, the contention is one which cannot for a moment be upheld. The argument must be based, if at all, upon the sale-certificate itself. In other words, we must decide, upon the construction of the sale-certificate, whether the Court conveyed schedule A lands to the plaintiffs. The sale-certificate declares the title of the purchaser to the land specified at the foot of the certificate. It is necessary then to see what are the lands so specified. If Mr. Sushil Madhab Mullick is right in his contention, that the lands specified did not include the disputed lands then, of course, it will be impossible to hold that the plaintiffs have any title to the disputed lands. The specified lands are described in these words: "Inventory of 244 bigas 10 kaihas tote land at an annual rental of Rs. 41-12-p besides cess, together with trees and clumps, houses, and bamboo (clumps) standing on the same, situate in Mauza Shankerpur, Parganah, Haraut, Tliana and Sub-Registry Office Araria. The decree-holder is the 16 annas proprietor. The lands have not been subject to Survey operations. "If the sale-certificate ended here, the argument which has in fact been advanced before us could not for a moment be entertained by this Court; but then there are these words which follow and the whole argument is based upon a description which, in my opinion, is a subsidiary description and a false description. The words are these:

Kitas. North. South. East. West.

Chaman Ajab Sukan Samda Miser. Mandal, Gope, Ghat.

Gopal Padu Samda- Lacha- Miser. Singh. dhar. dhar. 3. Govt. Hiyalal Uupan Sainda- lands Miser. Mandal. dhar.

The question then is, was the land sold by the area which is to be found in the document, or, was it sold by the boundaries mentioned in the document. The question is essentially a question of fact; parcel or no parcel that is how it has been described in the cases on the point. Now the rule is this:

"When the presmises is sufficiently described, as by giving the particular name of close, or otherwise, an erroneous additional description will be rejected as a ''false demonstration''; but if there is not this certainty in the first description as if it is expressed in general terms and a particular description is added, the latter controls the former and limits the generality of the earlier description." There is undoubtedly a conflict between the two descriptions, and the question which we have to consider is, whether the words constituting the second description should be rejected as a false description or whether they should be read as words of restriction. The test, in my opinion, is this: if the first description is sufficient in itself to identify the land which is conveyed, then, if there is a conflict between the first description and the second description, the second description ought to be rejected as a false description but if the first description is not sufficient by itself to identify the lands intended to be sold, then the second description ought to be read as restricting the operation of the grant. The question then is this: is the first description sufficient in itself to identify the lands in dispute? In my opinion, there can be no doubt that the words are quite sufficient to identify the disputed land. Not only is the area given but the annual rental is given which is Rs. 41-12-0. The description is quite sufficient itself to identify the entire block of land which was held by Phekan Singh and for which he paid a rent of Rs. 41-12-0. That being so, the second description must be rejected as a false description.

It follows, therefore, from this finding that the plaintiffs are entitled to recover -possession of schedule A lands. The next question is, whether the defendants or any of them are liable for mesne profits. Now, on this point the learned Subordinate Judge has come to the conclusion that the plaintiffs'' case as to possession and dispossession is wholly untrue. There is no evidence on the record that the defendants or any of them at any time before the summons was served on them were or was aware of the fact that Phekan Singh''s holding had been purchased by the plaintiffs in execution of a rent-decree obtained against Phekan Singh. The defendants Nos. 1 to 11 had admittedly a good title to schedule A lands by their purchase. That being so, it was necessary for the plaintiffs to give them notice of their purchase before they could make the defendants liable for mesne profits. Now, the defendants Nos. 1 to 11 sold the schedule A lands to defendant No. 13 long before the suit was actually instituted. In my opinion defendants Nos. 1 to 11 are not liable for mesne profits.

Defendant No. 13 contends that the question as between him and defendants Nos. 1 to 11 should be left open. I am unable to agree with this contention. Defendant No. 13 was in actual occupation of the land when summons was served upon him. He should have delivered possession of the disputed land, to the plaintiffs forthwith. From the time he received summons in the suit he became a wrong doer. That being so he is. liable for mesne profits from the date when summons was actually served upon him. We accordingly modify the decree passed by the Court below. The plaintiffs are entitled to a decree for possession as against defendants Nos. 1 to 11 and defendant No. 13. They are also entitled to a decree for mesne profits in respect of schedule A lands from defendant No. 13 from the date of the service of summons upon defendant No. 13 up to the date when defendant No. 13 makes over quiet and peaceful possession of the lands to the plaintiffs. There will be no order as to costs in this Court.

There is a cross-objection by the plaintiffs as against the finding of the learned Subordinate Judge in respect of schedule B lands. In my opinion the cross-objection should not be entertained. The plaintiffs and defendant No. 12 are all in the category of respondents, and it is unusual for one respondent to maintain cross-objection as against another respondent. It appears that the plaintiffs were out of time and they could not possibly have filed an appeal as against defendant No. 12. They, therefore, adopted this device to get rid of the question of limitation. That being so, we will not consider the cross-objection of the plaintiffs which must be refused.

Kulwant Sahay, J.

I agree.