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Balchand Purohit Vs. Sir Bejoy Chand Mahtab Maharajadhiraj Bahadur of Burdwan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1941Cal661
AppellantBalchand Purohit
RespondentSir Bejoy Chand Mahtab Maharajadhiraj Bahadur of Burdwan and anr.
Excerpt:
- .....prayer was based upon the contention of the appellant that his mortgage charge was prior to the rent charge created by the lease. it is quite impossible for us to deal with it in a satisfactory way in the present proceedings. mr. das contended that the plaintiff is not entitled to a mere declaration of the existence of a charge but that he should establish it in a suit brought to enforce it. ordinarily that would certainly be the position, but i find that for some reason or other the defendant instead of raising this objection actually had an issue framed to deal with it. it is however impossible to give the plaintiff any relief which would be of any use to him. if he is granted a declaration he must institute a suit to enforce the charge and any such suit will be barred by.....
Judgment:

Henderson, J.

1. This appeal is by the plaintiff. He has been put into a difficult position, because he conducted the litigation in the Courts below in person without legal assistance, 'It has therefore not been very-easy either for the learned advocates concerned or for the Court to deal in a satisfactory way with his case. In order to understand the two points which have been pressed in support of the appeal the following facts require to be stated : Defendant 1, the Burdwan Raj, executed a lease in favour of James Mukhia on 30th March 1926. Previous to that date on 19th May 1925 the Burdwan Raj intimated to James Mukhia that a lease would be sanctioned on payment of Rs. 41-10-0 as selami. This selami was paid on 22nd June 1925. On 6th August 1923 James Mukhia borrowed Rs. 1500 from the plaintiff and agreed to mortgage the lease as security. On 5th February 1926 James Mukhia borrowed a further sum of Rs. 1500 from the plaintiff. On 15th February 1926 James Mukhia executed another mortgage in favour of a certain firm. In 1930 the plaintiff instituted a suit on his mortgage. The puisne mortgagee did not redeem and the plaintiff obtained a decree and purchased the property in execution on 30th April 1932. In the meantime the Burdwan Raj had passed under the management of the Court of Wards. On 14th April 1931 a certificate was filed against the plaintiff claiming a certain sum as arrears of rent. The plaintiff raised various objections and the important thing to notice now is that he did not pay. The' property was then put up to sale and purchased by defendant 2 on 21st January 193S.

2. The plaintiff then instituted the present suit with two main prayers. The first prayer was for a declaration that the certificate was a nullity and for recovery of possession. The second prayer was for a declaration that the plaintiff has a charge on the property. The first prayer will obviously fail unless it can be shown that the certificate was a nullity. The contention of Mr. Choudhury is that the certificate officer had no jurisdiction to issue a certificate for the recovery of these arrears of rent. The certificate was issued under the provisions of Clause (8), Schedule 1. That clause authorizes the issue of a certificate for the recovery of any arrear of rent in the case of property under the management of the Court of Wards. The term 'rent' is not defined in the Public Demands Recovery Act. Mr. Choudhury suggested that it must be limited to the rent of tenancies governed by the Bengal Tenancy Act. There is nothing in the terms of the schedule itself to suggest that it should be limited in this way and I am not prepared to place upon the words used a narrower interpretation than the natural meaning.

3. The second prayer was based upon the contention of the appellant that his mortgage charge was prior to the rent charge created by the lease. It is quite impossible for us to deal with it in a satisfactory way in the present proceedings. Mr. Das contended that the plaintiff is not entitled to a mere declaration of the existence of a charge but that he should establish it in a suit brought to enforce it. Ordinarily that would certainly be the position, but I find that for some reason or other the defendant instead of raising this objection actually had an issue framed to deal with it. It is however impossible to give the plaintiff any relief which would be of any use to him. If he is granted a declaration he must institute a suit to enforce the charge and any such suit will be barred by limitation. Then in the second place neither of the Courts below has dealt with this issue in a proper manner and I should have to order a remand. In the third place I am not satisfied that the parties have proceeded to lead the evidence which will be necessary for a proper determination of the question. Now at the time when the present suit was brought the claim on the plaintiff's mortgage was not barred. The only way in which a proper relief can be given to the plaintiff is by allowing him to amend his plaint and to pay proper court-fees; then the parties will be able to adduce evidence and the question can be properly determined. If within two months of the arrival of the record in the first Court the plaintiff pays deficit court-fees he will be allowed to amend his plaint and make a prayer for the enforcement of the charge claimed. The defendants will be allowed to file additional written statements and both sides will be at liberty to adduce evidence. Costs in the first Court will be in the discretion of the Subordinate Judge. There will be no order for costs in this Court or in the lower appellate Court. If the plaint is not amended within the time allowed the present appeal will be dismissed without costs.


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