Ram Saran Poddar vs Mahomed Latif and Others

This was a suit to recover khas possession of certain lands acquired by purchase at a sale in execution of a rent-decree, or for such other relief as the Court may deem fit and proper. The facts shortly are these :--The Defendant No. 1 owned a raiyati holding under the Defendant No. 10, the landlord. In execution of a Civil Court decree obtained by the landlord against the Defendant No. 1, his right, title and interest was sold up and purchased by the landlord on the 7th November 1889. (subsequently, in March 1890, the landlord settled the lauds with the Defendants Nos. 2, 3 and 4 It would, however, appear that, notwithstanding this settlement, the zemindar, treating the holding as still subsisting in the hands of Defendant No. 1, brought a suit for the recovery of rent due from him for past years. He obtained a decree, and, in execution thereof, brought the holding to sale, and, at this sale, the Plaintiff purchased the property in Juno 1892. But the Plaintiff was opposed in obtaining posses�sion by the Defendants who had obtained settlement from the landlord, and the Plaintiff thereupon brought the present suit to recover possession of the property in question, or for such other relief as the Court might think fit to grant.

The issues, laid down for trial, were the following:

First, whether the Defendant No. 1 had a jote right and possession at the time of Plaintiff''s alleged auction-purchase. Second, whether the Plaintiff''s auction is collusive and fraudulent; and whether the Plaintiff is entitled to any relief.

The Munsif decided the first issue against the Plaintiff, being of opinion that at the time of the sale, at which the Plaintiff purchased, the Defendant had no jote right, it having ceased to exist at the sale in execution of the Civil Court decree obtained by the zemindar.

Then, as regards the second issue, he was of opinion that there was no proof that the Plaintiff or his benamidar was in collusion with the zemindar, decree-holder, and that he was not entitled to obtain possession of the property itself, the Defendant No. 1, at the time of the Plaintiff''s sale, having no subsisting interest in it, the Plaintiff was entitled to obtain a refund of the purchase-money which he had paid.

Both parties appealed; and the Officiat�ing District Judge of Noakhally agreed with the Court of first instance in so far as that Court held that at the time of the auction-sale in favour of the Plaintiff, the Defendant No. 1 had no interest in himself, and that therefore the Plaintiff was not entitled to recover possession of the property in question. But so far as the other matter was con�cerned, viz., as to the right of the Plaintiff to recover the purchase-money from the landlord Defendant, the District Judge was of opinion that the Plaintiff was not entitled to obtain that relief in the present ease, but that he might bring a separate suit for damages against that Defendant.

It appears to us that the judgment of the learned District Judge, in so far as the first branch of the case is con�cerned, is right. The learned vakil for the Appellant has contended that under sec. 22, clause 1 of the Bengal Tenancy Act, though by reason of the sale at which the landlord purchased the property at the execution sale, the occupancy right ceased to exist, yet the holding itself did not cease to exist, and that therefore the landlord was entitled to bring that holding to sale in execution of the decree for rent against Defendant No. 1, so as to give the Plaintiff, the purchaser, a right to obtain possession of it. We are unable to accept this con�tention as correct and to say that the Plaintiff is entitled to the relief asked for; and for this simple reason; the zemindar, by his own act, had brought the raiyati right of the Defendant No. 1 to a termination and then settled the lands with Defendants Nos. 2, 3 and 4; and therefore, at the time when the Plaintiff purchased the holding as the property of Defendant No. 1, there was no subsisting right in that individual, such as the Plaintiff could acquire under the sale in execution of the rent-decree obtained by the zemindar.

But there is no reason why the Plain�tiff may not recover the purchase-money that he paid at the sale brought about by the zemindar. That person chose to treat the Defendant No, 1 as still having a subsisting right on the property, and caused the property to be advertised for sale as belonging to that individual, and thus led the Plaintiff to advance money for the purchase of the property and it would be wholly inequitable if the zemindar were allowed to retain the money, which may be presumed to have been drawn by him in satisfaction of the rent-decree. And we may add that there is no reason why the Plaintiff should be driven to a separate suit for recovery of damages, there, being no doubt that he has suffered damage by the acts and conduct of the zemindar.

We think that under these circumstan�ces the Plaintiff is entitled to recover a decree as againt the zemindar for the purchase-money, and his costs.

The result is that the. decree of the Appellate Court, so far as it disallows the claim for refund of the purchase-money is set aside, and that of the Court of first instance restored. The Respondents other than the Maharaja (zemindar) are entitled to the costs of this appeal against the Appellant.