Lachmi Narain Singh and Others vs Rebati Debya and Others

Dawson Miller, C.J.—The history of this litigation commences as long ago as the year 1899 when Hari Kissun Bhagat, the father of the defendant No. 2, obtained a decree against Srimati Gayabati Kumari, the grand-mother of the first two plaintiffs. All efforts to obtain execution of the decree appear to have been persistently opposed by the original judgment-debtor and, although all the original parties are long since dead, the litigation has been carried on by their representatives with unabated vigour. After many previous attempts to obtain satisfaction, but which left the decree unsatisfied, execution proceedings were instituted at Monghyr in the year 1911 but in the subsequent year were transferred to Deoghar in the Santhal Parganas where certain property of the judgment-debtor, then in the hands of her representatives, was attached and sold in execution. Various attempts were made by the present plaintiffs as the representatives of the judgment-debtor to set aside the attachment, and afterwards the sale, but they all failed. In pursuance of the sale the auction-purchaser got possession of the three houses which it is alleged by the plaintiffs were not in fact sold and were not included in the description of the property appearing in the sale proclamation or the sale certificate. The object of the present suit is to recover back from the representatives of the purchaser, who died during the pendency of this suit, one of the houses, which the plaintiffs claim belongs to them and not to the judgment-debtor. The sale proclamation is not before us but the sale certificate, which is admittedly in similar terms, describes the property as follows:

The judgment-debtor''s right, title and interest in 2 bighas of lakhiraj land with kutcha and pucca houses standing thereon in Chandni Bazar (known as old thana) in the town of Deoghar where no settlement has been made. It is bounded by roads on north, south, east and west.

It is the plaintiffs'' case that the property known as old thana, which has apparently been converted into a bazar or market on the site of an old Police Station, is lakhiraj land, as in fact the description of the property in the sale certificate indicates, and that it is bounded, on the north, east and south by Municipal roads. On the west also there is a road or pathway which it is claimed is the boundary referred to in the sale proclamation. Immediately west of this path are the three houses in question including that claimed as belonging to the plaintiffs. To the west of these houses again is a Municipal road. This road has apparently been taken by the, auction-purchaser as the western boundary of the property sold and he has Succeeded in ousting the plaintiffs from possession under colour of the auction-purchase. It is further the plaintiffs'' case that the house in the suit is neither a part of the property known as old thana nor does it stand on lakhiraj land. It is important to bear in mind that the plaintiffs allege that this house was not intended to be sold and was never sold nor was it attached or proclaimed for sale nor purchased by the defendant first party. They claim a declaration to that effect and possession of the house.

Four pleas in bar were raised by the written statement in the present suit and the following issues amongst others were framed for determination:

(1) Is the suit barred by the general and special laws of limitation?

(2) Is the suit barred by the principles of res judicata?

(3) Is the suit barred by the provisions of Section 47 of the C.P.C.?

(4) Is the suit barred by Order XXI, Rule 92 of the C.P.C.?

An application was made by the defendants to decide these preliminary issues, before going into the evidence. The Subordinate Judge, at first decided to hear the parties on all the issues after evidence, had been gone into, but on an application for review of this order he appears to have changed his mind, notwithstanding the fact that the plaintiffs filed a petition pointing out that the determination of even these preliminary issues would require that some evidence should be gone into and on the 19th July 1120 he, passed an order that the first four issues should be determined first without taking any evidence. It is unfortunate that in spite of the protest of the plaintiffs he should have thought, fit to follow this course, for it was obvious from the moment that he applied himself to the determination of these issues that certain facts, would have to be ascertained before the preliminary questions raised could be satisfactorily determined. He considered that the suit was one to set aside a portion of the sale in the guise of a possessory suit. The suit, however, does not pray for the cancellation of the sale. In fact it was the plaintiffs'' contention that the property now claimed had never been sold at all. The learned Judge appears to have felt this difficulty, for he states at the beginning of his judgment. It may be true that the decree-holder gave wrong boundaries of the property known as purana thana but there is no denying the fact that the property with such wrong boundaries was proclaimed for sale and sold." And later he says: "The certificate of sale may not be conclusive as to the property purchased by the auction-purchaser but the property advertised and offered for sale in the sale proclamation, and bid for by the auction-purchaser was certainly the property ordered to be sold." This appears to me to be begging the question. One of the real issues in dispute between the parties was whether the property claimed had been sold or not. There was no evidence before the learned Judge to show whether the property claimed formed part of what is known as old thana or not; nor was there anything to show whether it was lakhiraj land. These are questions of fact which, in my opinion, it was essential to determine before it could be confidently decided whether the property was sold or not.

Having arrived at the conclusion that the property was in fact sold the learned Judge found, and I think found rightly upon the facts assumed by him, that a suit for possession would not lie as long as the sale was not set aside, and as the period of limitation within which such a sale could be set aside was one year from the date of the confirmation of the sale, which took place in 1913, the plaintiffs were not entitled to maintain the present action. The learned Judge also found that the suit was barred by Section 47 of the C.P.C., on the ground that the matters now in dispute were questions relating to the execution, discharge or satisfaction of the decree. I agree that if the property was in fact attached and sold then the plaintiffs'' only remedy as a party to the suit would be u/s 47 of the C.P.C., and not by a separate suit, but this again pre - supposes that the property was in fact sold. Now if it in fact should turn out that this property was not included either in the sale proclamation, or in the sale certificate and was not in fact purchased at the auction-sale, but was wrongly taken possession of by the auction-purchaser under colour of a title which he did not possess, no question arose within Section 47 of the Code and the period for recovering, possession of property taken under such circumstances would be 12 years from the date of dispossession.

The learned Judge further found that the suit was barred under Order XXI, 92, as it was in substance a suit to set aside an order passed under that rule confirming the sale. The same objection, however, applies to this finding as to his findings on the other issues, namely, that according to the case pleaded the property was not sold at all and the sale of such property was never in fact confirmed.

On the question of res judicata he found that the inclusion of the property in suit within purana thana was never directly and substantially in issue in the execution proceedings although the matter might and ought to have been raised in those proceedings. But as Exp. IV of Section 11 of the C.P.C., did not, in his opinion, apply to execution proceedings he held that the suit was not barred by the principle of res judicata. Here again the learned Judge assumes that the property was sold, for if it was not sold he is mistaken in saying that the question ought to have been raised in execution proceedings.

Much as I regret that this litigation will be still further protracted by our decision I am afraid it will be necessary to remand the case for further consideration upon the preliminary points after taking evidence of the facts upon which the plaintiffs rely as the basis of the relief claimed. Before deciding the preliminary issues, it will be necessary for the learned Judge to take evidence and come to a decision on the question whether the property claimed in this suit was included in the description of the property sold as described in the sale proclamation and the other documents in the case. If it was sold then the present suit is barred. If it was not sold then the suit would have to be decided on the merits. The decree of the Trial Court is set aside and the suit is remanded for re-hearing according to law in accordance with the directions given in this judgment. The appellants are entitled to the costs of this appeal. The costs already incurred in the lower-Court will abide the ultimate result of the suit and will be provided for by the judgment of the Trial Court on remand.

Foster, J.

I agree.