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Abdul Hamid Sardar Vs. Bijoy Chand Mahatap and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal108,136Ind.Cas.472
AppellantAbdul Hamid Sardar
RespondentBijoy Chand Mahatap and ors.
Cases ReferredNagendra Nath Pal v. Chandra Selchar Dalai
Excerpt:
- .....no mention should have been made by the present appellant, the auction-purchaser, of the sums of money paid as rent and i will assume that he did not refer to them and for that reason, it may be that the matter was omitted from the consideration of the court of first instance. however the auction-purchaser as well as the zamindar appealed from the decision of the first court and in the lower appellate court the auction-purchaser contended that he should be refunded the rent for 1329 b.s. which he had paid: apparently, he must have contended that it should be refunded to him by the zamindar. the lower appellate court observing that the matter was not mentioned in the written statement went on to express this opinion:i think section 14 of the regulation would not be a bar to such a suit.....
Judgment:

Rankin, C.J.

1. In this case, the plaintiff-appellant was the auction-purchaser of a patni sold under Regulation 8 of 1819 on 15th May 1922. Very soon afterwards, on 3rd June 1922, the patnidar sued to set aside the sale under Section 14 of the Regulation. The plaintiff obtained symbolical possession as it is called on or about 9th June 1922. In December 1922 and in April and May 1923, he paid certain sums of rent to the zamindar. In the end the suit of the patnidar succeeded and the sale was set aside by the first Court. At the time the first Court set aside the sale, it provided that the patnidar should recover possession and it directed the zamindar to pay the plaintiff's costs and also to refund to the present appellant the purchase money with certain interest, to return him certain security and to bear his costs in the suit.

2. It is natural enough that in the written statement of that suit no mention should have been made by the present appellant, the auction-purchaser, of the sums of money paid as rent and I will assume that he did not refer to them and for that reason, it may be that the matter was omitted from the consideration of the Court of first instance. However the auction-purchaser as well as the zamindar appealed from the decision of the first Court and in the lower appellate Court the auction-purchaser contended that he should be refunded the rent for 1329 B.S. which he had paid: apparently, he must have contended that it should be refunded to him by the zamindar. The lower appellate Court observing that the matter was not mentioned in the written statement went on to express this opinion:

I think Section 14 of the Regulation would not be a bar to such a suit for recovery of rent paid subsequently. In fact the lower Court awarded to the defendant 2,

that is, the auction-purchaser, ' the amount he claimed in the written statement.' Thereupon the present suit was brought by the auction-purchaser claiming against the zamindar the return of the money which he had paid as rent. He claimed also against the defaulting patnidar. The defaulting patnidar did not appear and contest and judgment was given against him ex parte. Both the lower Courts have dismissed the suit so far as the zamindar is concerned.

3. On this second appeal, it is contended for the plaintiff-appellant first that Section 14 of the Patni Regulation is not exhaustive of the remedies of the plaintiff for the present purpose; secondly, that if it is thought to be exhaustive in view of the opinion expressed by the appellate Court in the suit of the patnidar to set aside the sale, it must be taken for the purpose of this case that it is not exhaustive -- the matter having been so decided between the parties and thirdly, that the plaintiff is quite entitled to recover what ho claims independently of Section 14, as money had and received to the use of the defendant or money paid without consideration. No question of limitation arises in the present case.

4. In my judgment the correct view of Section 14 is the view adopted by Banerjee, J., in the case of Radha Madhub Samonta, v. Sasti Ram Sen [1899] 26 Cal. 826. In that ease the learned Judge was dealing with the question whether the auction-purchaser in such a case was entitled to recover the rent paid from the defaulting patnidar and the Court held that under Section 69, Contract Act, there was a causa of action independently of Section 14 altogether. On the question whether a separate suit was an infringement of Section 14, of the Regulation, Banerjee, J., pointed out that that section provided for the auction-purchaser being indemnified against all loss at the expense of the zamindar at whose instance the sale was brought about. Ha was not therefore (prepared to hold that that section excluded suits against any party other than the zamindar, namely, against the patnidar. To that view of the section, I venture to think that there is no valid objection. But it is another matter altogether when it is said that the auction-purchaser can got part of his remedy against the zamindar under Section 14, and can also retain the right to sue the zamindar for further relief in respect of the same transaction by a separate suit. In my judgment, so far as the zamindar is concerned, it is not intended by Section 14 of the Regulation that the matter should be dealt with piecemeal. The intention is that, at all events so far as the claim against the zamindar is concerned, the whole matter should be inquired into and the plaintiff auction-purchaser should be put in such a position as to suffer no loss.

5. The next question is whether, if that is so, the decision of the appellate Court in the previous case makes any difference. It is said that the auction-purchaser asked for his remedy before the lower appellate Court and the lower appellate Court held that he could got it in another suit. It is contended that that being so, unless the other suit is held to be maintainable, the auction-purchaser would have no remedy at all. I cannot say that I agree in this contention. It was open to the auction-purchaser to appeal to the High Court against the refusal of the relief claimed by him under Section 14 of the regulation. The mere expression of opinion that another suit would lie cannot possibly be held as binding on the parties. It was not part of the duty of the appellate Court to give advice to the parties; and, while one cannot but be sorry for the auction-purchaser if ho was misled by this expression of opinion on the part of the lower appellate Court, there can be no doubt that the legal position was that he should have appealed against that judgment; otherwise he took the risk of the advice given to him.

6. The third branch of the case which seems to me worthy of consideration is the question whether assuming that Section 14 of the Patni Regulation does not stand in the way of the plaintiff, the plaintiff hare can show an independent cause of: action apart from the provisions of Section 14 of the regulation. In one case, namely, the case of Nagendra Nath Pal v. Chandra Selchar Dalai [1906] 5 C.L.J. 59 Woodroffe, J., was of opinion that in a case of this character, money was recoverable as money paid under a mistake of fact. The learned Judge says:

The question whether there can be said to have been such a mistake is not altogether free from difficulty but the effect of the subsequent reversal of the sale must I think be taken to be this: that when the payments ware made they were so made under mistake, though the circumstance which made the payment one by mistake did not take place until afterwards.

7. Now, I cannot say that I agree with these remarks in principle. The mistake may be discovered afterwards but it cannot be that the circumstance which makes the payment one by mistake is one which took place afterwards. In the present case, the position was that the plaintiff got symbolical possession or ineffective possession on 9th June 1922, a suit at that time having been started to set aside the sale. It was in October of the following year that the payments were made to the zamindar, that is to say, he made the payments with his eyes open seeing that the sale had been challenged by the patnidar. In these circumstances if a question arises whether these payments were payments made under a mistake of fact, I fail altogether to be convinced that it can be treated in that way. [I am also not convinced that, as a matter of common law, the rents which were [paid by the auction-purchaser to the zamindar can be treated as money paid without consideration. It is said in this case that the possession was entirely ineffective and was only symbolical possession. In an ordinary case, one would suppose that the person paying rent is in effective possession and whether in these circumstances he ought to get back any of the rents which he has paid is essentially a question to be determined under Section 14 of the Patni Regulation. But I am not prepared to hold, even supposing that ho got no effective possession, that the fact would be of any service to him and that notwithstanding the symbolical possession which he did obtain, ha was in a position to maintain a common law cause of action for money paid without consideration. The remedy which is to be obtained from the zamindar should be obtained quickly and once for all under Section 14 of the Regulation. I think this is the true effect of the section not doubting that the interpretation put on it by Banerjee, J., is a correct interpretation.

8. For the reasons given above, the appeal, in my opinion, fails and must be dismissed with costs.

Pearson, J.

9. I agree.


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