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Anadi Nath Chakraborty and ors. Vs. Dukhiram Ghose and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 595 of 1974
Judge
Reported inAIR1982Cal113,85CWN1033
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100, 101 and 146 - Order 22, Rule 10
AppellantAnadi Nath Chakraborty and ors.
RespondentDukhiram Ghose and anr.
Appellant AdvocateN.R. Chatterjee, Adv.
Respondent AdvocateDipak Kumar Sen Gupta, Adv. (for No. 1), ;Saktinath Mukherjee and ;Samaresh Nandy, Advs. (for No. 2)
DispositionAppeal partly allowed
Cases ReferredBihar Eastern Gangetic F. C. Society v. Sipai Singh
Excerpt:
- .....plaintiff. it is, therefore, held that since there was no devolution of interest or assignment, this right cannot be claimed by defendant no. 2. the submissions made on behalf of the respondent no. 2 on this cannot be accepted. 22. the appeal is allowed in part. the judgment and decree appealed against be hereby set aside. the suit is decreed in part. it is hereby declared that the plaintiff was a licensee regarding the property in question in 1375 b. s. the other prayers stand refused. 23. the parties will bear their own costs throughout.
Judgment:

B.N. Maitra, J.

1. The plaintiff has alleged that the three disputed plots belonged to pro forma defendant No. 2 who retained the same under the provisions of the West Bengal Acquisition Act. He paid licence fee of Rs. 300/- and on the 15th Sravan, 1375 B. S., took a licence of that property for that year from Pro forma defendant No. 2. The defendant No. 1 came to catch fish from that pond, but he put up obstruction. Due to such threat, the plaintiff has instituted the present suit for a permanent injunction on declaration that he is a licensee regarding that property in question under pro forma defendant No. 2.

2. Defendant No. 1 has filed a written statement denying the plaintiffs allegations. His defence is that out of the big plot No. 518, he took settlement of two bighas on the north east from pro forma defendant No. 2. He is in possession of that property. One Nitya Gopal Biswas took settlement of plot No. 293 and the area of the land taken settlement of by the latter from pro forma defendant No. 2 is 2.72 acres. He is a bargadar of that land under Nitya Gopal.

3. The learned Munsif believed the plaintiff's version and decreed the suit. The defendant No. 1 filed an appeal. The appellate court affirmed the decision of the learned Munsif and held that the case of the plaintiffs right in the disputed property as a licensee was true. The defendant No. 1 had no interest in two bighas of land out of the disputed plot No. 518. Nitya Gopal's case of settlement of 2.72 acres of land was not true. The appeal was dismissed. Hence this appeal on behalf of the defendant No, 1.

4. It has been contended on behalf of the appellant that when the judgment was delivered, the plaintiff was no longer a licensee regarding the disputed property. The case became infructuous, when the appeal was filed, p. W. 3, Gunindra Choudhury, admitted the receipts, Exts. A to A/2. But the courts below did not consider this material evidence. Defendant No. 1 called for the Muris from the office of the pro forma defendant No. 2, but those documents were not produced. Hence there will be an adverse inference against the pro forma defendant No. 2 for non-production of those documents. The learned courts below illegally rejected the evidence of the D. Ws. The entire evidence given by them was not discussed or considered. The evidence of P. W. 3, Gunindra Choudhury, was also not considered. There was a case with Maharaja of Nadia pro forma defendant No. 2, under Section 144 of the Criminal P. C. because there was an obstruction of the way to the disputed property and a police report. Ext. I, was submitted. But the courts below did not consider that report, Ext. I The letter, Ext. E, written from the office of the Maharaja of Nadia shows that a direction was given to Bata Krishto Mondal not to depose in favour of defendant No. 1 Bata Krishto was intentionally withheld by pro forma defendant No. 2 and hence, there will be an adverse inference against him. In fact, pro forma defendant No. 2 has been pulling the strings from behind. The courts below illegally rejected the dakhilas, Ext. B series.

5. The learned Advocate appearing On behalf of the respondent No. 1 supported the decision of the courts below.

6. The learned Advocate appearing on behalf of the respondent No. 2 has stated that the appellant does not claim any title to the plot No. 293. He only says that the plot was erroneously recorded in the name of pro forma defendant No. 2 in the R. S. Khatian.

7. Now question arises whether the appellant has any interest in two bighas of land on the north-eastern portion of the big plot No. 518. That plot measures 17.94 acres. No commission was taken out by defendant No. 1 to establish the identity regarding the alleged two bighas of land. Moreover, both the courts below have concurrently disbelieved this portion of the appellant's case. Hence in second appeal this finding of fact cannot be disturbed.

8. The appellant does not claim interest in the second plot No. 562.

9. Then about the third disputed plot No. 293. The police report. Ext. I, cannot be considered in civil cases of this type. Bata Krishna is not the plaintiff's employee. There is no question of drawing any adverse inference for his non-examination, as defendant No. 2 is not the plaintiff. Nitya Gopal Biswas was not examined as a D. W. There is no explanation why he was not examined on behalf of the defendant No. 1. The entry in the R. S. Khatian regarding plot No. 293 is against defendant No. 1. That is a big plot. It has been rightly stated that Bata Krishto Mondal, who purported to issue dakhilas. Ext. A series, had no authority to grant the same. The courts below rightly negatived the appellants' claim, that of that plot 2.72 acres of land had been settled by the estate of Maharaja of Nadia to Nitya Gopal Biswas. This finding cannot be disturbed in second appeal. Consequently the appellant's claim, that he is a bargadar under Nitya Gopal Biswas regarding such 2.72 acres of land, cannot be accepted. The presumption of correctness of the R. S. Khatian has not been rebutted. The decision of the final court of fact cannot be reopened in second appeal, however erroneous that decision may be. This was laid down by the Supreme Court in the case in AIR 1959 SC 57 and of Kshitish Chandra in : [1981]2SCR764 . Hence though there was non-consideration of the receipts, Ext. a series, by the courts below, the judgment is not vitiated nor there was any failure of justice because the case of settlement in favour of Nitya Gopal Biswas was not established by clear and cogent evidence. Moreover, all these grounds were not taken by the appellant in his memo of appeal.

10. The important question arises whether the case has become infructu-ous. It has been stated that the plaintiff's case is that a licence regarding the disputed property had been granted to him only for the year 1375 B. S. Since that period is over, he cannot ask for declaration of his interest as a licensee and for a permanent injunction.

11. It has been argued on behalf of the respondent No. 2 that as the owner of the property, he is in constructive possession of the same through the plaintiff, who is in immediate possession and possession of defendant No. 2 is only 'mediate.' Reference has been made to pages 282, 283 and 285 of Salmond's Jurisprudence, 12th Edition. It has been contended that even where the landlord or the bailor transfers possession of the property to his tenant or his bailee, the latter and not the former has a right of action. When that property was in the possession of the plaintiff, who had merely profits a prendre, defendant No. 2 had no right of action. But there was a change of circumstances within the meaning of the provisions of Order 22 Rule 10 and Section 146 of the Civil P. C. as it has been held that yearly licence was later granted to the plaintiff by defendant No. 2 up to 1379 B. S., i. e. beyond the 5th July, 1972, which is the date of the decree of the trial court. Due to such subsequent event, the latter has a right of action to ask for declaration regarding such right of a licensee and for permanent injunction as well.

12. Reference has been made to the case of Rai Charan v. Biswanath in (1914) 20 Cal LJ 107: (AIR 1915 Cal 1031 to show that the trial of a suit cannot be arrested merely by reason of the devolution of interest of the plaintiff. The successor-in-interest may, if he chooses, obtain leave of the court under Order 22, Rule 10 of the Code to continue the suit. In the case of Sourindra Mohun v. Siromoni Debi in (1901) ILR 28 Cal 171, the suit was filed by one Bishnu Charan Kaviraj as Manager of the Dhalbhoom encumbered estate against Raja Sourindra Mohun for arrears of rent. Subsequently, a prayer was made for substitution under Section 372 of the old Civil P. C. The Manager was only an agent of the party. Subsequently, there was a change of the ownership pending the Suit and consequently, the prayer for substitution was allowed. In the case of Bepin Behari v. K. S. Bonnerjee in (1922) 26 Cal WN 361: (AIR 1921 Cal 422) a rent suit was filed by the Receiver of an estate and a decree passed. Subsequently, the Receiver was discharged and there was a devolution of interest. The decree made in favour of the Receiver was held not to be a bad one, hut it would enure for the benefit of the party, on whom the interest devolved. Reference has also been made to the case of Saila Bala v. Nirmala Sundari in : [1958]1SCR1287 to show that even if a suit is pending, when the transfer in favour of the appellant was made, that would not affect the result when no application had been made by her to be brought on the record. An appeal is a proceeding for the purpose of Section 146 of the Civil P. c. and the expression 'claiming under' used therein is wide enough to include cases of devolution and assignment, mentioned in Order 22 Rule 10 of the Code. This decision was followed by the Supreme Court in the case of Zila Singh v. Hazari in : [1979]3SCR222 , where it has been stated that Sec. 146 has been introduced with the ob.iect of facilitating the exercise of rights by persons in whom they came to be vested by devolution or assignment and being a beneficent provision. should be construed liberally so at to advance justice and not in a restricted or technical sense.

13. Reference has been made to Halsbury's Laws of England, Vol. 12, 3rd Edition, para 1358. to show that the owner of profits a prendre can bring an action for trespass at common law for their infringement. Although his primary remedy is trespass, he may in a suitable case maintain an action for nuisance if he is disturbed or adversely affected in the enjoyment. It has been urged that there was a devolution of interest in his favour within the meaning of provisions of Section 146 and Order 22 Rule 10 of the Civil P. C. Defendant No. 1 has been trying to disturb his possession therein. Hence, the entire relief asked for by the plaintiff can be granted in his favour.

14. The plaintiff has made out a casfl that the owner-defendant No. 2 had parted with his possession in the disputed property and granted a licence thereof to him for 1375 B. S. In the case ef State of West Bengal v. Saradiya Thakurani in : AIR1971SC2097 and of Ahindra v. Manmatha Nath reported in : AIR1973Cal168 (SB), it has been stated that such right is a licence. In my opinion, it is not a bare licence as such licence is coupled with a grant. It is, therefore, more than a mere licence for it is profits a prendre. In the case of Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh in : [1978]1SCR375 , it has been stated that the right to catch fish and carry it away being profits a prendre has to be regarded as immovable property within the meaning of the Transfer of Property Act read with Section 3(26) of the Genera] Clauses Act. The grant of profits a prendre has to be made by a registered instrument. It has been further observed that even if the settlement of ialkar is regarded as a lease, it would not make any difference because a lease of fishery, which is immovable property as defined by Section 2(6) of the Registration Act, if it is for any term exceeding one year or reserves a yearly rent, has also to be made by a registered document as required by Section 17(1)(d) of the Indian Registration Act and Section 107 of the Transfer of Property Act. Hence the aforesaid cases of Sourindra v. Siromoni ((1901) ILR 28 Cal 171) (supra) and Bepin Bihari v. K. S. Bonnerjee (AIR 1921 Cal 422) (supra) are distinguishable.

15. The case of Rai Charan v. Biswanath (AIR 1915 Cal 103) (supra) was on a different point because that was a suit for recovery of possession of land with mesne profits on declaration of title to the property in question. In the case of Saila Bala v. Nirmala Sundari : [1958]1SCR1287 (supra), the second respondent, Sudhir Kumar, was the owner of two houses in Calcutta. He executed a mortgage regarding those houses in favour of the 1st respondent, Nirmala Sundari. The latter instituted the suit on the mortgage and a preliminary decree was passed. In a proceeding, which arose out of the execution of the mortgage decree, one Saila Bala, appellant of that case, sought to intervene on the footing that she had purchased the property comprised in the decree. But after her purchase, the 1st respondent started the proceedings for the sale of the property. So, that case is clearly distinguishable.

16. Then about the other Supreme Court decision of Zila Singh v. Hazari (AIR 1979 SC 1086) (supra). That was a pre-emption case. The question arose whether the purchaser of the property could apply for execution of the decree.

17. In the case of Ram Ratan v, Bishnu Chand reported in (1907) 11 Cal WN 732, Sir Ashutosh Mookerjee and Halmwood, JJ. have stated that as a general rule, a court of appeal will confine itself to the state of the case at the time such judgment of the trial court was rendered and will not take notice of any facts which may have arisen subsequently. But in exceptional case, the Court will depart from this rule to shorten litigation and attain the ends of justice. It will appear from page 734 of the report that the court can take notice of the subsequent event where the plaintiff, who sued at a time when he had no subsisting title, was not allowed the benefit of a title which had accrued to him during the pendency of the case. This decision was approved by the Supreme Court in the case of Nair Service Society v. K. C. Alexander in : [1968]3SCR163 of the report. In the case of Nuri Mian v. Ambica in (1916) 20 CWN 1099: (AIR 1917 Cal 716), the prayer was for preemption. There was a partition of the property after the suit was filed, but before the decree was passed. It was held that the court was bound to take notice of such subsequent event, because by a partition, the plaintiff's interest in the property was gone and so, the suit could not be maintained: vide page 1108 of the report.

18. Law is that a case is to be decided on the cause of action given in the plaint. Of course, this rule admits of some exceptions. But this is not a case where the application of any exception is called for. The alleged interest of plaintiff is not identical or at par with that of defendent No. 2, inasmuch as the former holds profits a prendre for a fixed term of only one year, i. e. 1375 B. S.. whereas defendant No. 2 is its owner. The plaintiffs claim for a permanent injunction, so that defendant. No. 1 cannot disturb his licensee's right, is different from the right of defendant No. 2, who is in mediate or constructive possession.

19. Cases filed by agents, managers or receivers stand on a different footing altogether for they have no personal interest in the subject matter of the litigation. They sue for and on behalf of their masters and represent the latter, who are the real plaintiffs. In view of the aforesaid decision of Bihar Eastern Gangetic F. C. Society v. Sipai Singh : [1978]1SCR375 (supra), the holder of profits a prendre possesses an immovable property and has an independent right of his own. In case his interest in his immovable property is in jeopardy, he sues not to prove his grantor's interest but only to establish his own right therein. He does not sue for and on behalf of his grantor, when his fixed term of holding the property is over, neither he nor his grantor can claim any relief in that suit. As the defendant No. 2 does not hold that right of profits a prendre. his remedy is to file a separate suit to establish his claim.

20. This is not a case of assignment or devolution of interest within the meaning of Rule 10 of Order 22 of the Code. That rule or Section 146 has no application, Section 146 of the Code says that save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken by or against any person, then the same may be made by or against any person claiming under him. Here, the plaintiff is claiming through defendant No. 2 and not vice versa. Even if the provisions of Section 146 of the Code be liberally construed, the position will not improve. So, it is held that the prayer for permanent injunction must fail and the plaintiff also cannot ask for an injunction and declaration of his interest as a licensee beyond 1375 B. S.

21. Of course, the learned Appellate Court affirmed the decree of the trial court on the footing that subsequently, a licence had been granted by defendant No. 2 to the plaintiff. The court ought not to have taken notice of such subsequent event. Defendant No. 2 did not and could not claim to be transposed to the category of the plaintiff. It is, therefore, held that since there was no devolution of interest or assignment, this right cannot be claimed by defendant No. 2. The submissions made on behalf of the respondent No. 2 on this cannot be accepted.

22. The appeal is allowed in part. The judgment and decree appealed against be hereby set aside. The suit is decreed in part. It is hereby declared that the plaintiff was a licensee regarding the property in question in 1375 B. S. The other prayers stand refused.

23. The parties will bear their own costs throughout.


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