Mt. Ramdulari Kuer and Others vs Upendra Nath Basu

Kulwant Sahay, J.—These appeals arise out of a suit brought by the plaintiff-respondent for declaration of his title to and recovery of possession of four annas share in the eight annas purwari takhta of mouza Garua. Both the Courts below have decreed the suit. Appeal No. 615 is by the defendant No. 2, and appeal No. 677 by the defendant No. 1.

The facts giving rise to the suit are shortly these:

Mouza Garua in Mahal Rampur Mafi. Touzi No. 6758, in the District of Gaya is divided into two takhtas of eight annas each known as the purwari takhta and the pachhiari takhta. Four annas out of the eight annas pachhiari takhta belonged to the plaintiff and the father of the defendant No. 4. The remaining four annas was wakf property. Defendant No. 3 Reyaz Ali Khan was the owner of the entire purwari takhta. He, however sold one anna share to a third person and he had seven annas of the purwari takhta left to him. The four annas share belonging to the plaintiff and to the father of the defendant No. 4 in the pachhiari takhta was held in lease by the defendant No. 3. In 1915 a rent suit was brought by the plaintiff and the father of the defendant No. 4 against the defendant No. 3, and a decree was passed against the defendant No. 3 on the 23rd November 1905. In execution of this decree the defendant No. 3''s four annas share in the purwari takhta was attached on the 5th of June 1907 and it was sold in execution on the 19th September 1907 and was purchased by the plaintiff and the father of the defendant No. 4. The sale was confirmed on the 26th November 1907 and a sale certificate was granted and delivery of possession was formally given to the auction purchasers on the 12th June 1908. It is alleged by the plaintiff that he and the father of the defendant No. 4 applied for mutation of their names by right of the purchase in the execution sale; but they discovered that in the Collector''s register the name of the original defendant No. 2 Rai Bindeswari Prasad stood recorded by right of purchase under a deed of sale dated the 16th November 1907 executed by the defendant No. 3, in favour of Rai Bindeswari Prasad. The application for registration of name was accordingly withdrawn. The father of the defendant No. 4 sold his interest to the plaintiff on the 15th of October 1908, and the plaintiff as the owner of the entire four annas share purchased at the auction sale on the 19th of September 1907 brought the present suit for declaration of his title and for recovery of possession.

The suit was contested by the defendant No. 1 and the defendant No. 2. The original defendant No. 2 Rai Bindeswari Prasad died after filing a written statement and his widow Mt. Ramdulari Kuer was substituted in his place and is now the defendant No. 2. The defendant No. 1 is a purchaser from the defendant No. 2 under a deed of sale dated the 20th Baisakh 1323 (May 1916). Their defence was that the property originally belonged to one Jaikaran Lal who was the maternal grandfather of Rai Bindeswari Prasad. Jaikaran Lal died leaving a widow, Jasoda Kuer, and on her death the property passed to her daughter, Mt. Lochan Kuer, who was the mother of Rai Bindeswari Prasad. Mt. Lochan Kuer sold the property to one Mt. Peyari and she in her turn sold it to the defendant No. 3.

The case of the defendants Nos. 1 and 2 was that the sale by Mt. Lochan Kuer was without any legal necessity and all that passed by the conveyance executed by Mt. Lochan Kuer was only her life interest. Mt. Lochan Kuer died on the 5th of May 1906 and on the 5th of May 1907, Rai Bindeswari Prasad instituted a suit (No. 69 of 1907) against the defendant No. 3 for possession of the property on the allegation that the sale by Lochan Kuer was inoperative after her death. This suit was compromised and a compromise decree was passed in favour of Rai Bindeswari Prasad on the 13th of December 1907. It is contended on behalf of the contesting defendants that the purchase of the plaintiff in execution sale on the 19th September 1907 was during the active prosecution of the suit brought by Rai Bindeswari Prasad which was a contentious suit and that the doctrine of Lis Pendens applied to the plaintiff''s purchase. It was further contended that the sale by Mt. Lochan Kuer was without any legal necessity and was not binding on the reversioner Rai Bindeswari Prasad after the death of Lochan Kuer. It was further alleged that the deed of sale dated the 16th of November 1907 mentioned by the plaintiff in his plaint as having been executed by the defendant No. 3 in favour of Rai Bindeswari was not executed with the knowledge or permission of Rai Bindeswari and that he did not acquire the property under that deed of sale but under the compromise decree passed on the 13th December 1907.

Both the Courts below have held that the Suit No. 69 of 1907 instituted by Rai Bindeswari was a collusive suit and the compromise decree was also a collusive decree and, that, therefore, the doctrine of Lis Pendens did not apply to the plaintiff''s purchase. They further held that the deed of sale of the 16th of November 1907 was executed with the knowledge and consent of Rai Bindeswari Prasad and that having regard to the fact that the interest of defendant No. 3 had already been sold in the execution of the plaintiff''s decree on the 19th September 1907 no interest passed to the defendant No. 2, under that deed of sale.

The important question for decision in the present appeals is as to whether the purchase of the plaintiff at the auction sale held on 19th September 1907 is affected by the doctrine of Lis Pendens, This would depend on a finding as to whether the suit No. 69 of 1907 brought by Rai Bindeswari Prasad against the defendant No. 3 was a bona fide and contentious suit or whether it was a collusive suit. The learned District Judge as well as the learned Subordinate Judge have held that this suit was a collusive suit. This finding is based on mere suspicion. The dates of the various transactions are set out in the judgment of the learned District Judge and, from the fact that the suit of Rai Bindeswari was brought in May 1907 within a month of the date on which the plaintiff had filed his application for execution namely the 11th of April 1907, and that Rai Bindeswari entered into an agreement of sale with defendant No. 3 while his suit was still pending and after attachment of the property in the execution of the plaintiff''s decree and, in fact after the auction sale thereof, and that on the 16th of November 1907 Rai Bindeswari took a kobala of the same property from the defendant No. 3 while the suit was still pending, and that in December 1907 after the sale in execution in favour of the plaintiff had been confirmed there were consultations between Rai Bindeswari and his pleaders with reference to his suit and that on 12th December 1907 a petition was filed in Bindeswari''s suit that the parties were compromising and on the next day, that is on 13th December 1907 a petition of compromise was filed in the suit wherein the defendant No. 3 stated that Bindeswari''s claim was correct and that he was not in a position to refute it by evidence, the learned Judge came to the conclusion that Rai Bindeswari''s suit was not bona fide and contentious suit, but was fraudulent and collusive suit in order to defeat the plaintiff. I am, however, not prepared to agree with the conclusion of the learned Judge. It is not safe to come to a finding of collusion and fraud on mere suspicion. The suit brought by Rai Bindeswari on the face of it appears to be a bona fide suit. It appears that the suit was instituted on the 5th of May 1907; written statement was filed on 24th of June 1907; issues were settled on the 2nd July 1907; documents were filed by the defendant on 11th July 1907; time was taken by the plaintiff to produce evidence and on the 25th of July 1907 a list of witnesses was filed by the plaintiff and Rai Bindeswari. All these took place before the auction sale in favour of the present plaintiff and there is no reason to assume that the proceedings taken in Rai Bindeswari''s suit were not bona fide proceedings in active prosecution of a contentious suit. I agree with the learned Judge that the kobala of the 16th November 1907 must be taken to have been executed with the knowledge and consent of Rai Bindeswari and the defence of the defendants Nos. 1 and 2 in the present case that the said kobala was executed at the instance of a servant of Rai Bindeswari without his knowledge and consent cannot be true. But it is quite evident that kobala was really in settlement of the dispute between Rai Bindeswari and defendant No. 3. No doubt a sum of money was paid by Rai Bindeswari to the defendant No. 3 as a consideration for the kobala but that would not in any way affect the result of the case. When however Rai Bindeswari discovered that before the execution of his kobala on the 16th November 1907 the property had already been sold in execution of a decree in favour of the plaintiff there was a consultation between him and his lawyers and as his suit had not been finally disposed of Rai Bindeswari was advised by his lawyers to file a petition of compromise in the suit and to obtain a compromise decree. To my mind the fact that Rai Bindeswari had taken a kobala before the compromise petition was filed will not affect the rights of the parties and it must be held that the purchase of the plaintiff was during the active prosecution of a contentious suit. That the doctrine of Lis Pendens will apply to a purchase during the pendency of a suit which terminates in a consent decree is settled by authorities. I may only refer to the case of Tinoodhan Chattarji v. Trailokhya Char an Sanyal 17 C.W.N. 413. This case is also an authority for the proposition that the doctrine applies to a purchase at an execution sale. The fact that payment was made by Rai Bindeswari to the defendant No. 3 in order to obtain the consent decree will not affect the doctrine of Lis Pendens. This view is supported by the case of Tangor Manjhi v. Jaldhar Diari 14 C.W.N. 322 where in spite of the fact that a sum of Rs. 2,000 was paid by the plaintiff in order to induce the defendant to agree to a compromise decree it was held not to affect the Lis Pendens.

The learned District Judge has observed that the plaintiff in the present suit had established his title as against the defendant No. 3 before any proceedings were instituted by the defendant No. 2. It is difficult to understand what the learned Judge means by this observation. The mere fact of the plaintiff having applied for execution and asked for attachment of the property at the time when the suit of Rai Bindeswari was brought did not establish the title of the plaintiff as against the defendant No. 3. I have already observed that the sequence of dates as set out in the judgment of the District Judge does not lead to the irresistible conclusion that Rai Bindeswari''s suit was not a contentious suit. I am, therefore, of opinion that the purchase of the plaintiff is affected by the doctrine of Lis Pendens, and u/s 52 of the Transfer of Property Act, his purchase must be subject to the rights of Rai Bindeswari under the compromise decree passed in Suit No. 69 of 1907.

It has been contended on behalf of the plaintiff that the kobala of the 16th of November amounts to an admission on the part of Rai Bindeswari that the sale by Lochan Kuer was a valid sale and binding upon the reversioner and, in this view of the case, it must be held that the defendant No. 3 had a valid title which passed to the plaintiff under the auction sale. The question as to whether the sale by Lochan Kuer was a sale binding upon the reversioner need not be gone into in the present case. The learned District Judge has refused to consider this question on grounds which do not appear to be sound. The question was distinctly raised in the written statement and in the issues framed in the trial Court and evidence was adduced on the point. Had it been necessary to consider this question it would have been necessary to make a remand; but in view of the fact that the plaintiff''s purchase is affected by the doctrine of Lis Pendens it is not necessary to decide this question.

In the circumstances the plaintiff is not entitled to the declaration asked for by him and his suit must be dismissed. The decision of the learned District Judge must be set aside and the suit dismissed with costs throughout, and the appeals allowed. There will be only one hearing fee in both the appeals.

Mellick, J.

I agree. In my opinion there was no legal evidence to support the finding that the suit brought by Rai Bindeswari Prasad on the 5th May 1907 was fraudulent and collusive. I agree that the plaintiff''s purchase was subject to the rule of Lis Pendens and he acquired no title as against Rai Bindeswari Prasad.

The appeals must therefore be decreed.