Mt. Kabutri and Others vs Ram Prashad Sahu and Others

Courtney-Terrell, C.J.—These are two Miscellaneous Appeals and a Civil Revision which have arisen out of the following circumstances:

The plaintiff, Rai Bahadur Harihar Prasad Singh was the proprietor of mauza Baragaon and in that mauza one Ramlakhan held 27 bighas and odd as a raiyat. In July 1926, Ramlakhan sold 3 bighas 8 kathas to one Bansropan Sahu who is one of the appellants before us (in Miscellaneous Appeal No. 37 of 1934). At a somewhat later date which does not seem to be precisely known, he sold 8 bighas 6 dhurs to the husband of one Mt. Kabutri who is appellant before us in Miscellaneous Appeal No. 301 of 1933. Both the sales were accepted by the landlord and the lands purchased by each purchaser were given a separate rental and a khata No., and Ramlakhan was left in cultivation of 16 bighas with a rent of approximately Rs. 100. On 19th September 1929, Rai Bahadur Harihar Prasad Singh sued for the arrears of rent due for the years 1333 to 1336 F.S., and it is agreed that in respect of the year 1333 the claim for rent was for a period prior to the time either of the two sales to the appellants before us was recognized.

The plaint in the suit of which a translation has been put before us recites the facts of the respective purchases and states that the rent is in arrears and therefore asks for a decree in the following manner: (i) that the amount claimed in respect of rent be awarded against the properties and persons of the defendants, viz., against all of them: (ii) in the event of the defendants refusing to have the khatas separated and if the arrangement should be considered in the suit to be illegal by the Court, that a decree might be passed in respect of the entire holding as specified in Schedule ''A'' to the plaint (Sch. ''A'' sets forth the area of the lands known as Lakhan Singh, viz., the entire khata before the separation); and (iii) that if the defendants did not refuse that, a decree might be passed in respect of the remaining lands after excluding the lands transferred to the appellants in these appeals.

The suit was not defended and the two transferees of the portions of the holding did not appear before the Court to dispute the separation of the khata or indeed to take any other attitude with the result that a decree was granted to this effect:

This suit coming this day for final disposal before the Munsif of the First Court, Arrah, and in the presence of the pleader for the plaintiff and in the absence of the defendants it is ordered and decreed ex parte that a sum of Rs. 831-5-3 be paid by defendant (sic) to the plaintiff together with Interest at 6 per cent, till realization and together with costs.

The plaintiff then applied for execution and as appears from the judgment of the learned District Judge, he applied for execution against Ramlakhan only and no notice was served upon the two transferees who seem to have had no knowledge whatever of the proceedings. The decree holder put the entire area of the holding including that portion which had been transferred to the appellants to sale and it was bought by the opposite party No. 1, Ram Prasad, who proceeded to take delivery of possession and got dakhaldehani on 24th January 1933. Then the two appellants, viz. Bansropan who owned the 3 bighas 8 kathas and Mt. Kabutri who owned 8 bighas 9 dhurs came before the executing Court with an objection that the sale was not effective against them and they put in their objection in a somewhat unfortunate form.

They claimed to be in possession of the lands said to have been purchased by them and said that they had not, been made parties to the execution. Saying put those allegations of fact before the Munsif, the first of which was manifestly erroneous, (for delivery of possession had been granted to the opposite party), they asked for relief from the Court. The Munsif held that their interest had not been affected by the sale at all and he accordingly purported to "allow their objections", but he does not seem to have made any order.

The matter then went on appeal by the opposite party to the learned District Judge.

The learned District Judge considered the matter from what I venture to think a most unnecessarily technical point of view. He said that this being an objection under Order 21, Rule 100, Civil P. C, and Section 47 of that Code, and the objectors having said that they were already in possession of the property (a statement which was on the face of it mistaken) there was no power to give, a remedy because the Court could not give possession of that of which the claimants for possession said they were already possessed of and he said that neither Order 21, Rule 100, nor Section 47, is applicable. This, in my opinion, was not the proper way to treat the case. It is quite immaterial whether an application is said to be under a special section or under a special rule. It is the business of the Court to know the law and it is only incumbent upon the litigant to come before the Court and state the facts in respect of which he seeks the remedy.

He must ask for such remedies as he requires and there is no obligation on him to inform the Court under which Statute or Rule he is entitled to claim those remedies. If he does not state the Statute or the Rule or if he states a wrong Statute or wrong Rule that in no way relieves the Court of the obligation of itself applying the appropriate rule or section. I have had occasion more than once to protest against the carious superstition that a proper recitation of the appropriate section or rule is necessary for obtaining a remedy.

There is one small matter that needs to be noticed in passing. The appeal by Bansropan Sahu is out of time as a matter of appeal. The matter first came before this Court as an application in revision and it was filed on 11th January 1934, whereas the date of the District Judge''s judgment was 16th September 1933.

It was then pointed out to the then applicant for revision that his proper course was to appeal and he lodged an appeal on a later date. But if the date of the lodging of his appeal be taken as the date of this application in revision, which is to give him the best of the possible circumstances, it is still out of time. Nevertheless the point is of no practical importance in this case. The decision as taken up by the Munsif as far as the declaration of the law is concerned is correct. The sale had no effect upon the rights of the two objectors and their property not having passed under the sale, but only the property of Ramlakhan, delivery of possession could not, if the decree had been properly carried out, have passed to the auction-purchaser.

The Court should have acted u/s 151, Civil P.C., which emphasizes the fact that nothing in the Code prevents the Court from passing such order as may be necessary to meet the ends of justice or to prevent the abuse of the processes of the Court, and the Court, therefore should have directed that the possession should be re-delivered of their respective portions to the objectors. That would have saved much trouble and would have prevented the technical view of the matter taken by the District Judge.

The order of this Court will be that we use the powers reserved to us u/s 151, Civil P.C., and we direct that if possession has not already been recovered by the objectors of those portions of the holding which they had purchased from Ramlakhan they will be put into possession of those portions. It is unfortunate that the auction-purchaser should have to suffer this loss for he appears to be an innocent party; but an auction-sale carries no guarantee of title and no guarantee of any other kind and if the auction-purchaser purchases rights which have been inducted in the sale improperly he must restore possession and must pursue such remedies as the law allows him against those persons who are to blame for it. The parties will bear their own costs of these proceedings.

Agarwala, J.

I agree.