Mohammad Nazim Khan and Others vs Ramjivan Sahu and Others

Wort, J.—This is an appeal from the decision of the Subordinate Judge of Mazaffarpur after remand by this Court. It is necessary to notice what the claim was in the first place. The first relief claimed by the plaintiffs in their plaint was,

that the land in suit was the khas land of the plaintiffs by purchase at auction and that the said Hira Raut was only the benamidar of the plaintiffs and that no right was or could be acquired in respect of the property in suit by virtue of the decree dated 26th January 1925 in suit No. 78 of 1924, which is entirely fraudulent, collusive and illegal.

The facts are these. In 1917 an ex parte decree was obtained by the landlord with regard to the holding in dispute. The holding was put up for sale and one Hira Raut purchased it at the execution sale on 19th September 1917. It was that Hira Raut who is claimed by the plaintiff to have been his benamidar. Prior to that in fact on 7th June 1905 one Sabab Khan purchased the holding from the tenants and the case has always been, at any rate that of the landlord, that the holding was a non-transferable holding and therefore Sabab Khan was not entitled to be recorded as tenant. In 1917 Sabab Khan brought a suit claiming declaration as to his title and possession as tenant. He made in that suit the landlord and Hira Raut, the purchaser in the execution case, defendants.

The case proceeded through the Courts up to the High Court and was dismissed. Then in 1924 the heirs Sabab Khan brought an action against Hira Raut. Exactly what the relief claimed was is not disclosed in this case. During the course of the action the matter was referred to arbitration and an award was eventually made by the arbitrators in favour of the contesting defendants, the present appellants, that is to say in favour of the plaintiffs in that action, the heirs of Sabab Khan. Delivery of possession was taken as a result of this award which was made a record of Court.

Now this action was brought claiming the relief which I have stated. When the matter came up to this Court on appeal for the first time my brothers Fazl Ali and Rowland, JJ., decided two questions, one that Hira Raut was not a necessary party to this action and secondly that the action was not barred by reason of Section 66 Civil P.C. So far as the second question is concerned it seems to me, if I may say so with respect to the learned Judges, that their decision was right as Section 66 speaks only of actions against persons claiming a title under a purchase certified by the Court; in other words in this case against Hira Raut. But had the matter been open to me, I would come to the conclusion that there are difficulties in the way of the plaintiff which would be insuperable. One of these difficulties relates to another point which was decided by this Court on the last occasion and that was that Hira Raut was not a necessary party.

It is difficult to appreciate that decision on the basis at any rate of the argument which has been addressed to me, because, as I have already stated, one of the main reliefs claimed was that Hira Raut was not the purchaser but that he was merely the benamidar of the plaintiff. It is true that the Civil Procedure Code, following the rules of the Judicature Act, has stated that an action shall not be defeated by the nonjoinder of parties, and gives the Court wide powers of adding necessary parties. It must be equally clear that if necessary, parties are not joined, which in this case in my judgment includes Hira Raut, the action cannot proceed.

But I am precluded from deciding that point because it has already been decided by two learned Judges of this Court in this very appeal. I therefore have to deal with the case as it comes before me.

Two question have been argued. The learned Judge in the Court below has decided that the action which eventually resulted in an award by the arbitrators, that is to say the action of 1924 was fraudulent and collusive. He has also decided that the execution by reason of which Hira Raut the benamidar of the plaintiff, purchased, was an execution in a rent suit in which there had been a rent decree. Mr. Mukherji contends that that decision is right.

Mr. Mitter on the other hand contends on certain authorities that it was not a rent decree and for this reason that the claim for rent was for the years 1320 to 1323 and part of those years were the years during which the landlord then suing was not the landlord: in other words his claim in the rent suit was partly for assigned rent and partly for rent during the period in which he was the landlord.

It is contended therefore that that claim being a mixed claim prevents it being a rent decree. Mr. Mukherij relies upon the case of Forbes v. Maharaj Bahadur Singh AIR 1914 PC 111 at p. 939 (of 41 Cal) where Mr. Ameer Ali delivering the opinion of the Judicial Committee of the Privy Council puts the question of as to who would be entitled to bring a tenure to sale in the case of an ex-landlord and the present landlord, both obtaining decrees for their respective arrears. Mr. Ameer Ali states that that admits of only one answer and that answer must be the present landlord. It is contended therefore by Mr. Mukherji on behalf of the respondents that the only question to be ascertained in determining whether a decree is a rent decree or not is whether the landlord was the landlord at the time of the bringing of the action, and relies upon the authority to which I have referred. The case is not without difficulty, and, in my judgment, I come to the conclusion that the argument of Mr. Mukherji is right in this respect. It is clear that the landlord obtaining a decree for rent during the period during which he was the landlord would be entitled to a rent decree which would be a charge upon the property.

Is he any less entitled by reason of the fact that he adds to that sum items which are from one point of view not strictly rent, that is to say arrears of rent the recovery of which had been assigned to him? That this assigned rent itself is rent has been decided by the case of Srish Chunder Bose v. Nachim Kazi (1900) 27 Cal 827, a decision of a Full Bench of the Calcutta High Court. I am therefore disposed to hold that it was a rent decree and affirm the judgment of the learned Subordinate Judge in that respect.

But there remains one other and more important question and that is whether the learned Subordinate Judge has rightly decided that the action of 1924 was fraudulent.

It is perfectly and abundantly clear that whatever the claim was in the action of 1917 or the claim in the action of 1924, if the proceedings arising out of the action of 1924 stand, it disposes of the rights between the parties. What happened was this. As I have already indicated, an action was brought by the heirs of Sabab Khan against Hira Raut, and the claim which was then made was in substance the same that was made in the action brought in the year 1917, but of that there appears to be no evidence on the record but I am assuming it to be so at the moment. The parties to that action had agreed to refer their disputes to arbitration; and the first thing which is abundantly clear is this that the heirs of Sabab Khan and Hira Raut were at arm''s length and therefore their interests were diametrically opposed. Sabab Khan had purchased the holding in dispute from the original tenants and Hira Raut had purchased at the auction sale.

If the title of one was upheld the title of the other had to go; that is clear. If Hira Raut''s title was upheld then any rights which the of heirs Sabab Khan, who was the purchaser from the tenants, had to go.

In that state of affairs they referred their disputes to arbitration. It was open to them to do so and it was open to them to allow the arbitrators to come to any conclusion they thought fit in the circumstances in such an arbitration as regards the rights of the respective parties. The question of whether the matter was res judicata could have been raised, it is true, by Hira Raut. The learned Judge has come to the conclusion that the action was fraudulent and collusive on this ground. At first Hira Raut and the plaintiffs in the action of 1924 strenuously objected to the joinder of the present plaintiff whose benamidar this Hira Raut was supposed to be, in that action and the learned Judge refers to Ex. 41 which was the judgment rejecting the petition for intervention to show that the Court rejected it on the express understanding that the decision in that suit would not prejudically affect the present plaintiffs in any way.

The learned Judge is in error in making this statement. I have read Ex. 41 and it is clear that all that happened was that the learned Judge appears to have been of the opinion that because the plaintiff was not joined his rights could not be affected, but I am not basing my decision on that ground, I am assuming that the learned Judge has stated and correctly stated the effect of Ex. 41, and that may be a decision on the facts with which I am bound. But the fact that the learned Judge has stated that the decision in that action could not bind the plaintiff, is no evidence of fraud or collusion on the part of the heirs of Sabab Khan and Hira Raut. Nor is it evidence of fraud or collusion that the plaintiff and defendants in that action strenuously objected to the present plaintiff being joined in the suit.

Hira Raut was no doubt objecting because he was claiming to be purchaser whereas the plaintiff was saying that Hira Raut was merely a benamidar. The plaintiffs who were at arm''s length as regards Hira Raut were objecting no doubt for some reasonable cause because they did not want any other person coming into the action and complicating it. Shortly the fact that the two parties to an action objected to a third person being joined in their action is no evidence of fraud against those parties.

Then the learned Judge has stated that Hira Raut had agreed easily to refer the case to arbitration, but there is no evidence of that and if there were it cannot be evidence of fraud, and eventually he (Hira Raut) accepted the award, forgoing his legal rights. It is difficult to follow the reasoning of the learned Judge. It seems to appear from his statement that unless a party resists every possible order and questions every possible judgment, and as in this case, attacks the award, he must of necessity be fraudulent or that must be evidence of collusion. Then again the learned Judge seems to state that the arbitrators lightly discarded the effect of the decision in the former suit.

They may have been wrong in law but the fact that they assumed to have lightly discarded the decision in the previous case and not acted on it is no evidence of fraud against the arbitrators themselves.

I have no hesitation in saying that, on the statement of the learned Judge and on the statement of the trial Court, there is not a jot or title of evidence of anything for the determination of the question of fraud against the parties to the action of 1924: nor, in my judgment, is there any evidence of collusion. But assuming that there was collusion, it is not sufficient to set aside the judgment in that case. In those circumstances I can come to no other conclusion than that the decision of the learned Subordinate Judge on what is numbered issue 7 in the case is erroneous.

There is no evidence either of fraud or collusion, and if there were any evidence of collusion it was insufficient to enable the plaintiffs in the present case to ask to have the award and decree in the action of 1924 set aside. In those circumstances it seems to me that the decision of the learned Subordinate Judge was erroneous and therefore this appeal must be allowed with costs.