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Kalyan Das Vs. Brij Keshore and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1941All9
AppellantKalyan Das
RespondentBrij Keshore and ors.
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under.....braund, j.1. this is a second appeal. the facts and the circumstances out of which it arises are a little curious. the suit which was instituted as long ago as 9th august 1935, was for possession of a half interest in a house at benares which it is sufficient for me to describe as house no. 146. this house and its adjoining house no. 147 have become the subject-matter of this and a good deal of this litigation in the following manner. the entirety of house no. 147 and a moiety of house no. 147 belonged to two persons, who are father and son named nasir husain and nazeer husain. the remaining moiety of house no. 146 belonged to a lady named mt. razia begam, who was the wife, i think, of nazir husain. at some date prior to 1922, which is not material, nasir and his son nazeer husain.....

Braund, J.

1. This is a second appeal. The facts and the circumstances out of which it arises are a little curious. The suit which was instituted as long ago as 9th August 1935, was for possession of a half interest in a house at Benares which it is sufficient for me to describe as house No. 146. This house and its adjoining house No. 147 have become the subject-matter of this and a good deal of this litigation in the following manner. The entirety of house No. 147 and a moiety of house No. 147 belonged to two persons, who are father and son named Nasir Husain and Nazeer Husain. The remaining moiety of house No. 146 belonged to a lady named Mt. Razia Begam, who was the wife, I think, of Nazir Husain. At some date prior to 1922, which is not material, Nasir and his son Nazeer Husain mortgaged the whole of house No. 147 and their moiety of house No. 147 to Kalyan Das, the plaintiff in the proceedings out of which this appeal arises. In 1922 in a suit No. 50 of that year t he plaintiff took steps to enforce his mortgage. He obtained a preliminary, and in due course a final, decree and ultimately the mortgaged property came to be sold by the Court. The sale was proclaimed for 5th October 1923. It was to be held by the local amin and a sale proclamation was issued. With what can only have been great carelessness, the sale proclamation mentioned only a house No. 146.

2. The auction took place. At it there were present, among other persons, the plaintiff and the original defendant to these proceedings, Munshi Sundar Lal. It may be mentioned in passing that Munshi Sundar Lal died during the pendency of the proceedings which accounts for the fact that the present respondents are his heirs. Sundar Lal, as far as can be gathered, had no previous connexion with this property and was not, as far as I can see, in any way connected with the mortgage. The auction took place on the spot and the amin first put up house No. 147. It is alleged and the lower Courts have found it to be true as a fact and I accept it that the amin in putting up house No. 147 for sale pointed out to the assembled bidders house No. 146. It is not suggested that this was anything but a bona fide mistake. But it was, as it seems to me, the origin of the whole trouble. Upon that footing the defendant, Munshi Sundar Lal, bid for a house described as No. 147, supposing it to be that house which the amin had pointed out, namely, house No. 146. In setting out the facts briefly I need say no more than this at this stage, that it has been conclusively found in the Courts below - and I again agree with it - that the defendant Munshi Sundar Lal too made a bona fide mistake. He intended to bid for, and did in fact bid for, what he believed to be house No. 146. Not only that he bid for the house which had actually been pointed out by the amin. Eventually the lot was knocked down to him for a sum of approximately Rs. 1100 and he went away believing that in purchasing the house described as No. 147 he had actually purchased the house that had been pointed out by the amin. It would perhaps be easier to follow if I say at that stage that house No. 146 lies immediately to the west of house No. 147. And the two houses respectively are referred to in the judgments of the lower Courts and will be referred to by me, as the 'western house' and the 'eastern house' respectively. The western house is No. 146 and the eastern house is No. 147. It was the western house that was pointed out to the defendant as the lot for which he was invited to bid and for which he did bid and which was wrongly described by the amin as No. 147.

3. Immediately after the sale to the defendant, lot No. 140 was put up. This, of course actually, was one moiety of the western house for which the defendant had already bid and of the whole of which he conceived himself to have become the purchaser. When this was put up, the plaintiff-mortgagee himself bid for it and purchased it. Now, it is necessary carefully to observe what followed. That auction sale was held on 5th October 1923. On 5th November 1923 the sales were confirmed, and subsequently sale certificates were, granted and possession was given to the respective purchasers. It is perfectly true that the sale which was confirmed to the defendant and the sale certificate which was given to the defendant were in respect of house No. 147. That is only natural and logical because, whatever it was that the defendant had purchased, he had purchased it as house No. 147. The significant thing, however, is that the defendant actually took possession of house No. 146, that is to say, the western house and the plaintiff actually took possession of house No. 147, that is, the eastern house. Put in other' words, each of them took possession of a house which, if regard be had only to the strict numerical description of them, was the house purchased by the other. It appears that the defendant, Sundar Lal, as regards the western house took a number of steps, to which I shall refer more particularly in a moment, all of which point to the fact that he was under a genuine belief that the western house was the house which he had purchased and ultimately he went so far as to pull down all the existing buildings on it and to build new buildings at a cost which, I am told, amounted to Rs. 11,000. Meanwhile, the plaintiff throughout this time remained in possession of the eastern house. And, as far as I can see, took no steps to rectify any mistake that had been made, assuming that he knew of it.

4. Now, the position which had been created in this way was a very curious one. The plaintiff who had, ostensibly purchased a moiety only of No. 146, was actually in possession of the whole of No. 147, that is, the, eastern house. On the other hand, the defendant who 'ostensibly' had purchased the whole of No. 147, that is to say, the eastern house, was in fact in possession of the whole of the western house, of which house a moiety, at any rate, was at the date of the auction outstanding in Mt. Razia Begam. When he went into possession, the defendant must necessarily have taken possession of not only that moiety of the western house which was subject to the mortgage but also of that other moiety of the western house which was never subject to the mortgage, but which was outstanding in Mt. Razia Begam. It is quite obvious that as against Mt. Razia Begam, the defendant could have had no answer had that lady immediately after the mortgage objected to his having taken possession of her share. But what actually happened was that throughout the period from 1923 to 1932, no one objected to what had happened and it was only in August 1932 that she muddle was appreciated and Mt. Razia Begam brought a suit against both Kalyan Das and Munshi Sundar Lal, claiming her share of the western house. As I have pointed out, if this suit had been brought at an earlier stage Munshi Sundar Lal could not possibly have had answer to it. But, as it was, the suit failed, not on the ground that Munshi Sundar Lal had obtained a title as against Mt. Razia Begam by virtue of the auction sale, but because it was held that Mt. Razia Begam, by standing by and allowing Munshi Sundar Lal to spend a considerable sum of money on re-building the premises, had thereby estopped herself from asserting her rights. That suit went through the many processes of a suit and its latest stage is that it was settled in the way I have described by a judgment in second appeal by my learned brother Allsop J., on 1st November 1939. The learned Judge, however, gave leave for a further appeal under the Letters Patent and so that suit is not even yet finally laid to rest.

5. The position, therefore, was altered by virtue of those proceedings. Munshi Sundar Lal who could have got no possible title to the whole of the western house under the auction sale under whatever description he bought the property did in fact get a title to the whole of it, subject to the result of the Letters Patent appeal, by his successful defence to the suit of Mt. Razia Begam. In this way, Munshi Sundar Lal remained in possession of the whole of the western house without danger of interference from anyone. And, as I have said, up to that point the plaintiff Kalyan Das had remained, without complaint, in possession of the eastern house. In those circumstances, on 9th August 1933 this suit was begun by the plaintiff alleging - and alleging for virtually the first time-that what he had purchased at the auction-sale nearly twelve years earlier had been in fact the property described as house No. 146, -whereas what the defendant had purchased at that auction had been the property described as house No. 147. He ignored what may have been the intention of the parties and the muddle that may have been made and claimed upon this ground to turn the defendant out of possession of the western house together with the buildings which at great expense to himself the defendant had erected in the bona fide belief that the land belonged to him. That is the suit with which the Munsif and the learned Civil Judge had to deal and with which I now have to deal in second appeal. It is a claim by the plaintiff, after an interval of just short of twelve years, to take a technical advantage of a mistake which was made in 1923 at the auction-sale and to insist that he is now entitled to have the property of the exact description which he bought, irrespective of what the real intention of the parties may have been and of any equities between them.

6. Now, a number of technical defences have been raised to this suit, but I propose first to try to dispose of it upon the grounds of principle. It appears to me that the first thing to consider because it lies, I think, at the root of the whole matter is what it was that the parties, apart from any question of mere description, purchased at the auction in 1923. Put in another way, what I think we have first to consider is whether the defendant, when he bid for house No. 147 and when it was knocked down to him, was really intending to purchase the western house and whether it was the western house which the amin really intended to sell to him. In the same way, when the plaintiff bid for what was described as house No. 146 was he really intending to purchase the eastern house and was it the eastern house which was knocked down to him? That seems to be the substance of the matter. If it is true that in substance and in reality the purchase by the defendant was the purchase of that house which is known as the western house, then it seems to me that its misdescription as house No. 147 is a mere falsa demons tratio. In the same way, if what the plaintiff intended to purchase was the eastern house, then I doubt if it matters in the least whether it was described as house No. 146. If upon the facts of this case, it should prove that the defendant genuinely believed he was buying, and intended to buy, and the amin intended to sell to him the western house, then, as between himself and a co-purchaser at the same auction it is not easy to see upon what principles he could be deprived of his purchase. If, on the other hand, the plaintiff bought and intended to buy the eastern house, it is equally difficult to see upon what principle of law, equity or common sense he can be entitled to come to a Court after an interval of nearly twelve years and to insist upon having something he never intended to buy. I shall, therefore in the first place treat this as a pure question of fact. I have to see therefore what have been the conclusions of fact which have been arrived at in the Courts below. Turning first to the judgment of the Munsif I find that it contains a highly significant finding of fact. He says:

I think the entire oral arid documentary evidence of the parties conclusively establishes that the defendant really purchased the entire western house in suit on 5th October 1923. Within the knowledge of the plaintiff at the Court Amin's assurance that the entire western house bore No. 13/147....

7. Now, that seems to me a finding of fact, not only that the defendant intended to buy the western house, but that the plaintiff knew he intended to buy the western house. And it seems to follow that, if the plaintiff knew that the defendant intended to buy the western house, then the plaintiff must equally have known, when he purchased the other house, that he was buying the eastern house and not the western house. Passing to the judgment of the learned Civil Judge I find that he comes to the same conclusion. He finds first, on the reverse of p. 2 of his judgment, that 'the finding of the lower Court is perfectly correct.' He finds a little lower down:

8. The statement of witnesses examined by the defence clearly establishes that the western house was actually purchased by the defendant and not by the plaintiff and the plaintiff's statement that he purchased the half of the western house is wrong in fact.

9. That means, if I understand it rightly, that the defendant purchased and was sold the western house (irrespective of its number) and that the plaintiff purchased and was sold and knew he was sold the eastern house. The learned Civil Judge on p. 3 of his judgment finds that the amin did in fact point out the western house as answering the description 147 and the eastern house as answering the description 146. The Civil Judge then goes on to consider and discuss the evidence upon which he bases these findings. He discusses first the bona fides of the defendant and he concludes that that has been clearly established. He says that there is no doubt whatever that the defendant when he took possession of the western house took it in the belief that its number was 147. I should perhaps have said at an earlier stage that neither of these houses bore any actual numbers. The Judge then finds from a series of steps taken by the defendant that he has proved up to the hilt his genuine belief that what he had been sold was the western house. For instance the defendant accepted rent from the tenant of the house. He made certain applications to the municipal board in respect of the house describing it as No. 147. He made arrangements for sewerage upon the footing that the house's proper number was 147. He even mortgaged it as house No. 147 to the Secretary of State and finally, he spent a sum on it amounting to nearly Rs. 15,000 in building the house. I agree with the learned Civil Judge in thinking that this evidence points conclusively to the fact that what was offered to the defendant at the auction was the western house and that he bid for and purchased that house only. It is quite true that the amin by mistake described it as house No. 147, but that, to my mind, is a mere 'false demonstration' and the substance of the matter is that the defendant purchased that house which physically was the western house. Then the Civil Judge proceeds carefully and well to consider the evidence which points to what I may describe as a lack of bona fides in the plaintiff and he comes to a conclusion which he expresses in these words:

The simple question of fact to be determined was whether the defendant purchased the western or the eastern house and on the materials discussed above I find that he purchased the western house...and I can safely say that the defendant Munshi Sundar Lal purchased the western house thinking that it actually bore the No. 12/147 and agree with the lower Court and hold that the defendant purchased the western house first and at the second and subsequent bidding the plaintiff purchased the eastern house.

10. That is as plain a finding of fact as there can be that what the plaintiff purchased was the eastern house. I may say that I agree with that conclusion of fact. Now that, to my mind, is alone 'Sufficient to dispose of this suit. If it is true, as it must be taken to be, that the plaintiff was aware all the time that the defendant had purchased the western house, then it must follow that the plaintiff himself, when he purchased house No. 146 immediately afterwards, could have been under no delusion as to what he was getting. He must have bid for, and in-r tended to bid for, the eastern house and nothing else. And all the evidence points that way. He has been content to accept that position for almost 12 years since. He has never complained until this suit that he did not get what he purchased. It is only now for the first time that he comes hero and says 'I did not purchase the eastern house at all, I purchased the western house.' How upon this finding of fact, can the plaintiff possibly succeed in this Court in obtaining something which ex hypothesi he never bought. It appears to me that this affords a conclusive answer to the whole suit. It does not seem to me to be necessary to refer to any authority. But it may be contended I am not sure that it has been in this suit that whatever the intention of the parties may have been the effect of the sale certificate was actually to vest in the respective parties Nos. 146 and 147 that is to say, that 147 was actually vested in the defendant and 146 in the plaintiff. It will be remembered that the sale certificate did accurately show the numbers and, therefore, if we look at the sale certificate the defendant actually got 147 and the plaintiff got 146. But that, in my judgment, would not, in the least, help the plaintiff in this suit. Even if I accept if was a fact that by virtue of the sale certificate he has become technically the owner of house No. 146, that is to say, the western house, ever so I am quite satisfied that no Court in justice, equity or good conscience would assist him to obtain possession of something which he never bargained to have.

11. Indeed, I think that the present case is covered by the well known English case in Leuty v. Hillas (1858) 2 De. G & J 110. In many ways this case in principle is not unlike the well known comparatively recent case in Craddock Bros. v. Hunt (1923) 2 Ch. D. 136. I feel free to refer to this case because after all I am entitled in this Court to apply principles of justice, equity and good conscience and I am entitled to look for such principles to English authorities. In Craddock Bros. v. Hunt (1923) 2 Ch. D. 136 a situation arose which, in many respects, is not unlike the present one. I need not give the facts in full because they are very long and very complicated. In effect, what happened was that at an auction of adjoining properties one purchaser purchased one property and another purchaser purchased the other property in precisely the same way as in this case. The plaintiff bid for and thought he was getting as part of the lot which he bought, a property which included the whole of a certain courtyard. The defendant whose lot was put up immediately afterwards purchased the adjoining piece of land. It was found as a fact in that case, precisely as I have found as a fact in this appeal, that the subsequent purchaser was well aware what the previous purchaser had bought. At a later date the subsequent purchaser upon a technical ground sought to contend that part of the yard should be included in his purchase. Now, as I say it was found as a fact that the subsequent purchaser was well aware that the previous purchaser had purchased the whole of the yard. In those circumstances this is what is said by Lord Stern-dale, M.R. at p. 155 of the report:

It seems to me that the question is whether if on these facts the defendant ought to be in equity a trustee of the brown land for the plaintiffs. The learned Judge must, I think, on this branch of the case as on the former, have held that he ought but he has not given his reasons for so holding. It does not seem to me that the case is brought within the direct authority in Leuty v. Hillas (1858) 2 De. G & J 110 where the facts were quite different, but I think it comes within the principle which seems to me to underlie that case. I can see no conscience or honesty in the defendant's claim and I think he should be declared a trustee for the plaintiffs of land, to which he has by mistake got a title, which he knew had been knocked down to them, and which he never thought was intended to be sold to him or had been bought by him.

12. Those last words appear to me exactly to cover the present position. Equally clearly Warrington L.J., at page 158 of the report deals with the same question. He says:

The defendant has accidentally got something which he has neither bought nor paid for, and he had notice that the vendor did not intend to sell to him, for he knew, as I have said, that so much of the property as was not included in what he intened to buy was knocked down to the plaintiffs. The principle applicable to Leuty v. Hillas (1858) 2 De. G & J 110 and to the present case is, in my opinion, that under which a man acquiring a legal estate with notice that another had a better claim thereto cannot in a Court of Equity be allowed to insist on his position at law, but will be treated as a trustee for the person rightfully entitled, and be if necessary, ordered to convey the estate to him....

13. Even assuming, therefore, that, because of the form of the sale certificate, the plaintiff did obtain, as a conveyancing technicality, a title to the western house under the description 146, I should not have the least hesitation in holding even in India that a Court, in its application of principles of justice, equity and good conscience, would hold him to be, in circumstances such as these, a trustee for the real owner. For these reasons, in my view, this appeal must fail. There were other points argued in the Courts below and notably a question of estoppel. It was said that the plaintiff, having stood by all these years and having watched the defendant put up this expensive building cannot now be heard to assert his interest in the land. It is precisely the same case as that with which Mt. Razia Begam was met at an earlier stage. It is suggested by the learned advocate who has appeared for the respondents that it is incredible that Munshi Sundar Lal, can have remained in possession of the western house all these years without realising that he got a property which he never bought. I do not hold that view. In the first place, as I have already decided, it was thewestern house that he had bought. There is no reason, as far as I can see, why he should have supposed that the No. 147 was not an accurate description of it. The houses were not numbered. He had been led to believe from the beginning that the house did bear No. 147 and I am quite satisfied that he genuinely did believe it. Certainly nothing has been proved in these proceedings which shows that anything happened which could have undeceived him as to that. Had it been necessary for me so to decide I should have found very little difficulty in saying that the learned Munsif and the learned Judge were right in this matter of estoppel also. It is not necessary for me to discuss the other points that arise in this appeal because this, as I have said, is sufficient to dispose of it. For these reasons this appeal must be dismissed with costs.

14. I have been asked by the unsuccessful appellant for leave to appeal further under the Letters Patent of the Court. This matter of giving or withholding leave to appeal under the Letters Patent is always an embarrassing one for a single Judge and it is generally distasteful to him for obvious reason, to have to refuse a further appeal from his own decision. But, as I understand it, the policy of the law in this respect is, in cases such as these, that litigation should normally end with the second appeal to the single Judge and that only in what I may describe as special or exceptional cases is a further appeal to a second Bench of the High Court to be allowed. It is placed within the discretion of the Judge himself as to what cases a further appeal ought to be allowed in. And, as it seems to me, that is a discretion which ought not to be exercised haphazard but on principles.

15. My attention has been called to no case of this Court in which these principles have been laid down. But, as it seems to me, there are, at any rate, four cases in which leave to appeal under the Letters Patent should be given. First, in a case in which a question has arisen which is of general importance. In such case as that it is manifestly, in the public interest that a more authoritative decision should be given than is possible at the hands of a single Judge. And to this head I might possibly add a case in which the matter involved is of altogether unusual private importance, either by reason of the magnitude of the material issues involved or for some other reason. Secondly, there are cases in which a question arises of very frequent occurrence. Such a case might arise where, on some new statute a point arises which will govern the rights and liabilities of a large number of people. An authoritative decision in a case like that is necessary to serve as a precedent for future cases. And, thirdly, there are those cases in which the existing authorities by which the Court is to be guided are either obscure or conflicting. In such a case as that it is to the public interest that all doubts should be dissolved and for that reason it is obviously proper to grant leave to appeal under the Letters Patent. These principles have been set out in the judgment of the Bombay High Court in Sadashiv Vishnu v. Sakharam Raghunath ('32) A.I.R. 1932 Bom. 218 and I desire to say, with great respect, that I fully agree with what fell from the learned Judge in that case. There is then a further case which arises and it is one in which greater difficulty arises. It is the case in which the Judge himself who decides the case feels a reasonable doubt as to the correctness of his own decision and thinks that for that reason it is just to the parties that a further appeal should be allowed. This is the sort of case that is dealt with in the Patna case in Asarfi Mander v. Karu Mander ('34) 21 A.I.R. 1934 Pat. 466 pat 466. I should not desire to question that this, in a proper case, is a good ground upon which to grant a Letters Patent appeal. But it is a ground which should, in my judgment, be exercised with considerable care and in a proper case only. As the late Sir Courtney-Terrell, the Chief Justice of the Patna High Court, and the learned Judge who sat with him in the case to which I have referred, observe, 'leave to appeal should not be granted too lightly.'

16. In a great majority of cases which a single Judge is called upon to decide on second appeal, I venture to think he would hesitate to assert that he was 'certain' that the result at which he had arrived was correct. Speaking for myself, I have not sufficient confidence to say that I am certain that I necessarily decide nearly every case rightly. But that does not mean that, in every case or nearly every case, a Letters Patent Appeal should be granted. In my view, in order to justify a Letters Patent Appeal it is necessary to go a good deal beyond those ordinary doubts which every modest Judge, however capable he is, must often feel in respect of his own decisions. It is necessary that there should be some real and outstanding point of difficulty as to which the Judge feels there is every chance that another Judge or other Judges who bring to bear fresh and different minds on the question might take different view. Those are the principles which appear to me to be the right ones and which, until I am corrected by a more authoritative pronouncement as to what the proper principles are, I propose myself to apply. The present case is not, in my view, one which qualifies under any of these heads. I think I need say no more than that.

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