Jaisri Lal Pande vs Dukhlal Thakur

Scroope, J.—This is an application u/s 115, Civil P.C., against the order of the Subordinate Judge of Purnea allowing the application of one Dukhlal Thakur under Order 21, Rule 100. He contended that he was in possession of the property when the opposite party Jaisrilal Pande obtained a delivery of possession on 28th May 1928 and so dispossessed him in execution of a decree against the heirs of one Babulal.

The property originally belonged to one Shiva Dayal who had two sons, Manilal and Babulal, who were separate and inherited a half share of each of the property. Dukhlal, the opposite party, now represents Manilal''s branch and claims to have acquired the other half share through transfer from Babulal in 1305 and 1306 by two kabalas which stood in the name of Runabati, Manilal''s wife.

It was Dukhlal''s case that he was a minor during the cadastral survey, Manilal having died, and that Babulal looked after the entire property and dishonestly got his name recorded in respect of it. Dukhlal then brought title suit No. 5 of 1924 against Babulal''s heirs for the property and by compromise effected on 3rd July 1926 his 16 anna right in the property was declared. He claimed then at the time of delivery of possession of Jaisri Lal to have been in possession and to be realizing rents from the tenants. The Subordinate Judge held that Jaisrilal''s mortgage was a collusive transaction. He came to this conclusion simply in view of the compromise decree and because Jaisrilal was a relation of Babulal and must have known all about Dukhlal''s title suit as admittedly he deposed against him in that suit. In my opinion the learned Subordinate Judge was wrong in going behind the decree and holding in a summary procedure of this kind that the mortgage was collusive. It would be an equally-valid argument that the compromise between Dukhlal and Daimanwati in 1926 was a collusive one in order to avoid the effect of Jaisrilal''s mortgage decree.

Jaisrilal''s mortgage was in 1912 and it seems to me that this transaction of 17 years ago has been far too lightly rejected as a collusive one. There is a further difficulty in the case of the opposite party. It is urged for Dukhlal that he is not a representative of the judgment-debtor as he derived his title from the two kabalas and not under the compromise. But in the suit which he brought against Daimanwati the judgment-debtor, he expressly alleged that he was oat of possession and that being so if he has recovered possession it is through the compromise and so he stands in the shoes of the judgment-debtor. There is a third difficulty and that is that the compromise whereby rights in the property in dispute were created in favour of Dukhlal was arrived at during the pendency of the mortgage suit.

The case thus clearly raises matters which are outside the scope of a decision in summary proceeding under Order 21, Rule 100 namely the validity of the original decree lis pendens and whether the opposite party derives title by the kabala or by the compromise decree. The petitioner has a mortgage decree in his favour and the Court cannot go behind that in this proceeding and hold that it is collusive. In my opinion the proper remedy for the opposite party is by a regular suit and I would hold that the learned Subordinate Judge had no jurisdiction to decide these questions as he has done in the proceeding under Order 21, Rule 100. The application is therefore allowed and the order of the learned Subordinate Judge is set aside with costs. Hearing-fee two gold mohurs.