Jamuna Prasad Upadhaya vs Bulaki Lal Pandey and Others

Fazl Ali, C.J.—This litigation relates to 15.38 acres of land and the question to be determined is whether the plaintiff, who is the appellant in this Court, or the defendants are the true owners of these lands. Both the Courts below have held that the plaintiff is a mere farzidar for the defendants and is not entitled to a decree for possession. The plaintiff has preferred this second appeal and the main question raised before us on his behalf is that in the circumstances to be mentioned hereafter it was not open to the defendants to question the plaintiff''s title in this litigation.

The facts of the case are briefly these. In 1919 the disputed lands were acquired by the defendants in a sale which was held in execution of a certificate against the recorded tenant. At that time one Kartik Mahto held sudbharna in respect of the lands and the defendants could not recover possession. In 1927 the defendants instituted a suit against Kartik and his wife Bhago (in which they impleaded the landlords also) for a declaration of their title and for possession of the lands. In this suit Kartik''s defence was that the purchase had been made by Bhago in the farzi name of the defendants. This defence was negatived and the suit was decreed in 1929. In 1930 Suraj Mohan Thakur who admittedly owned a 12 annas share in the village brought a rent suit against Bhago which was ultimately, decreed. In 1931 Suraj Mohan Thakur purchased the lands in execution of his decree and obtained possession. In 1934 a rent suit was brought by the 4 annas cosharer, Kishun Mohan, against the defendants and on 29th January 1935 the suit was decreed. When Kishun Mohan proceeded to execute the decree, an objection was preferred on behalf of Suraj Mohan Thakur to the execution on the ground that the decree was not a valid rent decree and inasmuch as the defendants had no interest in the lands nothing could pass to Kishun Mohan at the sale. Ultimately, however, the holding was sold and purchased by the plaintiff in May 1936. On 15th July 1936 the Munsif decreed the objection which had been preferred by Suraj Mohan Thakur in the course of the execution proceedings and held that nothing passed to the auction purchaser. This view was affirmed in appeal, but the order of both the Courts was reversed in revision by this Court and the sale was upheld.

The plaintiff claims possession to the disputed lands by virtue of this sale and is resisted by the defendants on the ground that the plaintiff was a mere benamidar for them. It was contended by Mr. Bose that if we bear in mind the provisions of Section 173, Bihar Tenancy Act, we must hold that the defendants cannot question the purchase of the plaintiff. Section 173, Clause (2) provides that the judgment-debtor shall not bid for or purchase a tenure or holding or portion of a holding so sold. It is contended by Mr. Bose that if the case of the defendants is true, then they had practised a fraud upon the Court. The def6ndants were judgment-debtors in the rent suit and as such they came within the prohibition of Sub-clause (2) and could not purchase the holding and inasmuch as by purchasing it in the name of another person they have committed a fraud upon the Court, they should not be allowed to take advantage of their fraud and defeat the plaintiff by justifying their purchase. In my opinion this contention is not sound. Sub-clause (2) of Section 173 should be read along with Sub-clause (3) which runs as follows:

When a judgment-debtor purchases by himself or through another person a tenure or holding or portion of a holding so sold, the Court may, if it thinks fit, on the application of the decree-holder or any other person interested in the sale, by order set aside the sale and the costs of the application and order, and any deficiency of price which may happen on the re-sale, and all expenses attending it shall be paid by the judgment-debtor.

As was pointed out in Mohammad Siddiq v. Durga Prasad AIR 1917 Cal. 43 Sub-clause (3) of Section 173 largely does away with the salutary effect of the prohibition and establishes a sort of rule of factum valet and throws upon the decree-holder or any other person interested in the sale the burden of making an application to have the judgment-debtor''s actual purchase set aside. This clause provides the procedure which may be adopted for setting aside the sale where a judgment-debtor purchases the holding himself or ''through another person. In the present case no application was made by the decree-holder or any other person interested in the sale to the Court to set aside the sale and the sale has not been set aside. It was held in Muhammad Amirul Hasan Vs. Muhammad Jewad Hussain and Another, that the sale in execution of a rent decree to the judgment-debtor himself is not void but voidable and remains valid until duly set aside. This case also does not come u/s 66, Civil P. C, and as was held by the Privy Council in Lokhee Narain Roy v. Kalycuddo Bando-padhya (74) 2 I. A. 154 that section is applicable only to a suit brought against a certified purchaser to assert a benami title against him, and where the certified purchaser is a plaintiff the real owner if in possession, and if that possession has been honestly obtained, may show in defence that the holder of the certificate is a mere trustee. In the present case it is admitted by the plaintiff that the defendants are in possession and it was frankly conceded that Section 66, Civil P. C, can be of no avail to him.

Mr. Bose relied strongly on 31 Bom. 405, but that was a case in which a case of fraud had been clearly established. In the present case, no one has been defrauded and, the observations of Jenkins C. J. upon which he relies can be of no avail to the plaintiff. The learned advocate for the appellant attempted to question the finding of the lower Appellate Court as to the benami character of the plaintiffs'' purchase. That finding, however, has been arrived at on a very careful consideration of the entire evidence and cannot be disturbed in second appeal. In these circumstances I would dismiss the appeal with costs which will be payable to the defendants first party.

Sinha, J.

I agree.