Kissendeyi Debi vs Saroshi Bala Dasl

Renupada Mukherjee, J.—This appeal arises out of a suit instituted by Respondent Saroshibala Dasi for declaration of her title to and recovery of khas possession of some lands described in the schedule of the plaint. Though the lands have been described as appertaining to a mokarari jama of Rs. 60-15 it was admitted during trial that the jama, was an occupancy raiyati holding held by one Satish Chandra Pradhan and some other Prodhans under two sets of landlords, one set being Bibhuti Bhusan Pal Choudhury and others and the other set being represented only by one Bhola Nath Dutt and each set having 8 annas share in the superior right. The Plaintiff claimed title to the above mentioned holding on the basis of two auction purchases consequent on the execution of two mortgage decrees obtained by her against the Pradhan tenants. Her case was that she was in possession of the lands after her auction purchases and she was dispossessed by the Defendants of the trial court in Chaitra, 1351 B.S.

The suit was contested only by Defendant No. 2, Kissendeyi Debi who is Appellant in this appeal. The remaining Defendants disclaimed any interest in the disputed property. The contesting Defendant denied the title of the Plaintiff and set up a title of her own contending that the recorded tenant in the sherista of the superior landlord was Panchanan Chatterjee and the contesting Defendant had purchased the holding from the Official Receiver of the High Court who had been empowered by the High Court to sell the property for satisfaction of a decree passed against Panchanan and another person. This defence was negatived by the courts below and so Defendant No. 2 of the trial court has preferred this Second Appeal.

Mr. Mitra appearing on behalf of the Appellant submitted three contentions before me. He contended in the first place that upon the documents filed by the Plaintiff Respondent her auction purchased title to the disputed holding had not been made out and secondly, her title, even if established, cannot take precedence over the title of the Appellant. It was contended in the third place that, in any event, the suit should have been dismissed on the ground that it was barred by limitation. I shall take up all these contentions one after another.

Coming to the question of title I may at once say that one Satish Chandra Pradhan and some other Prodhans were at one time the tenants of the disputed occupancy raiyati holding bearing a jama of Rs. 60-15. The Plaintiff''s case in the trial court was that she took mortgage of two-thirds share and one-third share of this holding under two separate mortgage deeds and purchased the above shares by obtaining two mortgage decrees and putting the decrees into execution. The purchase of one-third share of the disputed holding is evidenced by a sale certificate marked ext. 3. That sale appears to have been confirmed on July 31, 1931. Regarding the purchase of the remaining two-thirds share of the holding, no sale certificate is forthcoming. There are, however, the mortgage bond (marked ext. 1) showing mortgage of two-thirds share of the holding by some of the tenants, the extract from the suit register showing the passing of a decree on the basis of the mortgage bond (extract from suit register marked ext. 4) and the bid-sheet of the execution case showing the auction purchase of the mortgage lands by the Plaintiff decree holder for Rs. 575 on September 7, 1931. There is a note in the suit register that the execution was dismissed in part satisfaction on November 30, 1931, to the extent of the amount of Rs. 575 which was the amount fetched by the sale. From all these documents the courts below have come to the conclusion that two- thirds share of the disputed holding was purchased by the Plaintiff Respondent and the sale must have been made absolute in due course as was contended by the Plaintiff Respondent. Mr. Mitra contended on behalf of the Appellant that in the absence of the sale certificate it would not be permissible to make such an inference. This contention is not acceptable to me because a sale certificate does not by itself create any title, it being merely an evidence of title acquired by a party by auction purchase. In the present case, the auction purchase of two-thirds share of the disputed holding by the Plaintiff Respondent is amply proved by the documents already mentioned by me. The sale also must have been made absolute otherwise the execution case would not have been dismissed on part satisfaction.

In this Court Mr. Mitra appearing on behalf of the Appellant tried to raise a contention that the lands purchased under the bid- sheet marked ext. 5 are not identical with the suit lands. Such a contention was not put forth in any of the courts below and it was negatived by the evidence of Appellant''s own witness Hutasen Pradhan, one of the executants of the mortgage of two-thirds share. He stated in his evidence that the Plaintiff Respondent obtained ex-parted decrees on two mortgage bonds which covered one-third and two-thirds share of the disputed holding. The question of identity of the disputed lands with the lands covered by the Plaintiff''s auction purchase was not raised or canvassed in the courts below and I hold that their identity has been sufficiently established. The Plaintiff Respondent, in my judgment has succeeded in establishing her auction purchase title, to the disputed holding and the first contention put forth on behalf of the Appellant must fail.

The second point which arises for my consideration is which of the two rival purchases whether the auction purchase of the Plaintiff Respondent or the purchase by the Appellant from the Official Receiver would prevail. This question has arisen under the following circumstances. The auction purchase of the holding by the Respondent was complete by November 30, 1931. The superior landlords had obtained two rent decrees on December 20, 1930, that is, before the above auction purchase. The decrees were put into execution in two separate rent execution cases in 1933 which were consolidated into one case, and one Panchanan Chatterjee auction purchased the holding on October 2, 1934 (vide the sale certificate ext. M). The sale was confirmed on November 23, 1934. The Appellant is a purchaser of the interest of Panchanan through the Official Receiver. It is admitted that the Plaintiff Respondent was not made a party in the rent execution cases although her title to the disputed holding had accrued after the passing of the rent decrees but before the starting of the rent execution cases. In these circumstances, the courts below held that the Plaintiff Respondent not having been made a party to the rent execution cases and the rent sale having taken place against the recorded tenants who had lost their title to the holding prior to the starting of the rent execution cases, the title of the Plaintiff remained unaffected by the rent sale, and must take precedence over the title of Panchanan or of the Appellant who claims a derivative title from the latter.

Mr. Mitra appearing on behalf of the Appellant contended that the above view of the courts below is wrong inasmuch as the superior landlords were never given any notice of the auction purchase of the Plaintiff Respondent and the Prodhans against whom the rent sale was held represented the holding in the sherista of the landlords and so the purchase at the rent sale by Panchanan conferred a perfectly valid title upon him. This argument of Mr. Mitra is not acceptable to me for two reasons. In the first place, there should be a presumption that before the two mortgage sales in favour of the Plaintiff Respondent were confirmed, notices of transfer must have been issued to the landlords m the ordinary course of official business (vide the case of Menajuddin and Anr. v. Heronuddin Mullick and Ors. (1946) 51 C.W.N. 914 the observation occurring at p. 91G, second column). Mr. Mitra contended that as the names of the landlords do not occur in the mortgage bond marked ext. 1 or in the sale certificate marked ext. 3, there should be a counter presumption that the requisite notices were not served upon the landlords. This argument is without any substance, because the purchaser of a mokrari or occupancy raiyati holding at an auction sale is required to file notices on the landlords and to deposit necessary fees only after the sale and not before it and in this case, as in the case reported in Menajuddin''s case, there would be a presumption in law that such notices were duly filed and served. The Appellant did not succeed in rebutting the above presumption. That being the case the landlords could not validly put the disputed holding to sale without making the Plaintiff Respondent a party to the execution proceedings.

The second ground on which the argument of Mr. Mitra that Panchanan had validly purchased the disputed holding at the rent sale should be repelled, is that the sale was held against the recorded tenants at a time when they had ceased to be tenants by reason of the prior mortgage sales and as the relationship of landlord and tenant did not subsist between the landlords and the Pradhan at the material date, namely, the date of the rent sale the holding did not pass at that sale. This view gains support from the case of Binapani Devi v. Banku Bihari Mondal (1943) 47 C.W.N. 651. This case has been noticed with approval in the case of Manajuddin Supra The view underlying Binapani Devi''s case has also been approved by Das and Lahiri, J J. in a comparatively recent case Safedali Fakir Vs. Sm. Radharani Deb, I may just quote the following passage from p. 446 of the report of the last mentioned case.

In my opinion, the landlord, in order that he may avail himself of the rights conferred by Chapter XIV of the Act, must implead as Defendants, the persons in whom the tenancy is vested or persons who represent the said persons. It is not sufficient merely to implead the person whose names appear in the landlord''s rent roll.

The view taken by me underlies the decision in Binapani''s case and was the basis of the decision in Nrisingha Prasad''s (1949) 54 C.W.N. 683 case to which I was a party.

It would appear from the abovementioned three cases and also from some observations made at p. 108, second column of a case reported in Karnialakshya Chowdhury and Ors. v. Joychand Lai Bdbu and Ors. (1943) 48 C.W.N. 105 that in order that a tenure or holding might pass at a rent sale, it is incumbent upon the landlord decree holder to make the actual owner of the tenure or holding at the date of the sale a party to the execution proceeding. The question whether the landlord get notice of ownership of the actual owner where he had acquired his title by purchase seems to be a matter of no moment because the underlying principle in such cases is that the person against whom the sale is held must have a saleable interest in the holding at the time of the sale. This being the legal position the purchase of the Plaintiff Respondent must take precedence over Panchanan''s auction purchase even if it be assumed for argument''s sake that no notice of Plaintiff''s aviation- purchase was given to the landlords

Mr. Mitra further contended on behalf of the Appellant that at the time of the rent sale Pradhan represented the tenancy in the sherista of the landlords and so the rent sale was a valid one. In support of his argument he relied on one of the cases already referred to by me, namely, the case reported in Safedali Fakir Vs. Sm. Radharani Deb, In that case, the sole recorded tenant Maneswari Dasi had sold her entire interest to one Bireswar Deb Sarkar during the pendency of the rent suit. Bireswar was not made a party either in the rent suit or in the execution case which culminated in rent sale. The auction purchaser who was a third party, instituted a suit for declaration of his title and other reliefs. It was held by Mukherjee, J. who had heard the second appeal that the decree obtained by the landlord against the recorded tenant without impleading the transferee from the latter, had the effect of a rent decree and the sale held thereunder was a rent-sale because the landlord did not receive notice of the transfer till after the sale. In a Letters Patent Appeal against the decision of Mukherjee, J. it was held by Das and Lahiri, JJ. that the view taken by Mukherjee required modification and the case was remanded for finding whether Maneswari Dasi represented the tenancy in the suit for rent and in the execution proceedings. On the strength of the decision in the Letters Patent Appeal Mr. Mitra contended that in this case also there should be a remand for ascertaining whether the Pradhans represented the tenancy in the Shasta of the landlords at the time of the rent sale. In my opinion, this contention of Mr. Mitra cannot be accepted because I have already held that the landlords must have had notice of the transfer. That being the case the Pradhans who had lost their title prior to the starting of the rent execution cases could not possibly represent the Plaintiff Respondent in the execution cases. There cannot be any question of representation where the only person who is the tenant is not proceeded against (vide Manajuddin''s case (1946) 51 C.W.N. 914 Section 146A(2) of the Bengal Tenancy Act deals with the question of representation of the interest of one co-sharer tenant by another. Apparently a co-sharer tenant who represents the interest of other co-tenant or co-tenants must himself be a tenant. If he is a person who does not possess any interest in the tenancy he cannot represent the real tenant u/s 146A(2) of the Bengal Tenancy Act. I must say with great deference that viewed in the above light and read side by side with the case reported in Menajuddin v. Heranuddin Supra it is difficult to understand the propriety of the order of remand passed in the case reported in Safedali v. Radharani Supra It is not for me to say anything about the correctness of that order but for the present I need only say that in view of my finding that the land lords must have received notice of the Plaintiff''s auction purchase, no question of the Plaintiff being represented by the Pradhans in the rent execution cases arises and in the circumstances of the case I hold that the auction purchase of the Plaintiff Respondent must prevail over Panchanan''s purchase at the rent sale and therefore, over the purchase by the Appellant of the interest of Panchanan through the Official Receiver.

The second contention urged by Mr. Mitra on behalf of the Appellant therefore fails.

The third and last contention urged on behalf of the Appellant was that in any event the suit'' should have been held to be barred by limitation inasmuch as the suit was instituted more than twelve years after the auction purchase of the Plaintiff Respondent, and she never got actual possession of the disputed holding. Upon a consideration of the evidence of possession the trial court held that the Plaintiff was in possession till 1350 or 1361 B. S. The lower appellate court found that the Plaintiff was in possession up to 1351 B.S. and the possession of the Appellant commenced in 1952 B.S. The suit was filed in 1946, that is, sometime in 1353 B.S. Both the courts below held that Panchanan, the auction purchaser at the rent sale, never got actual possession. Mr. Mitra contended that in coming to the above conclusions the courts below did not properly consider some documents filed on behalf of the Appellant. I, however, find that the courts below have arrived at the above findings on a consideration of both oral and documentary evidence although more stress has been laid upon oral than upon documentary evidence. That cannot, however be a ground for setting aside the concurrent findings of the courts below on a question which is essentially a question of fact.

So I must reject the third and last contention urged on behalf of the Appellant.

All the grounds taken on behalf of the Appellant having failed, this appeal is dismissed with costs to the Plaintiff Respondent.

Leave to file an appeal under Clause 15 of the Letters Patent is asked for and refused.