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Deo Karan Agarwalla Vs. Satyendra Ghosaul and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. C. No. 273 of 1958
Judge
Reported inAIR1959Cal621,63CWN361
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 21, Rules 97, 99 and 103
AppellantDeo Karan Agarwalla
RespondentSatyendra Ghosaul and ors.
Appellant AdvocateA. Gupta, ;B.B. Das Gupta and ;Asutosh Ganguli, Advs.
Respondent AdvocateP.N. Mitter and ;Nalini Ranjan Bhattacharji, Advs.
DispositionPetition allowed
Cases ReferredSailendra Nath Bhattacharjee v. Bijanlal Chakravartti
Excerpt:
- .....of the said plot of land which was settled by them in september 1939 with one rasananda jana. title suit no. 463 of 1945 was instituted by satyadhan ghosal against rasananda jana and on the 12th january 1948 a decree was passed therein against rasananda jana. in execution of that decree the land was auction-purchased by deokaran agarwalla and the petitioner's case is that he took khas possession peacefully through court on the 8th january 1949 and had ever since been in possession thereof. title suit no. 261 of 1949 was filed by the shebaits against satyadhan ghosal and his co-sharers in their personal capacity. that suit was one for ejectment. in that suit neither rasananda jana nor the present petitioner deo karan agarwalla was made a party. ultimately their suit was decreed ex.....
Judgment:
ORDER

B.K. Guha, J.

1. This is an application under Section 115 of the Code o Civil Procedure at the instance of one Deo Karan Agarwalla and it is directed against an order passed by a Munsif of Alipore in respect of a petition under Order 21 Rule 97 of the Code of Civil Procedure by the decree-holders.

2. Before going into the merits of the case it is necessary to state certain facts. Opposite parties 1 to 19 are the shebaits of a debutter estate known as Bhukailash Raj Estate. Many years ago the predecessors of Satyadhan Ghosal and others are stated to have taken settlement of the suit lands from the shebaits of the debutter estate. Later on a portion o this land was surrendered and the remaining six bighas and thirteen cottahs continued to be possessed by Satyadhan Ghosal and his co-sharers. It is the case of the petitioner that Satya Dhan Ghosal and his co-sharers are settled raiyats as contemplated by the Bengal Tenancy Act in respect of the said plot of land which was settled by them in September 1939 with one Rasananda Jana. Title Suit No. 463 of 1945 was instituted by Satyadhan Ghosal against Rasananda Jana and on the 12th January 1948 a decree was passed therein against Rasananda Jana. In execution of that decree the land was auction-purchased by Deokaran Agarwalla and the petitioner's case is that he took khas possession peacefully through court on the 8th January 1949 and had ever since been in possession thereof. Title Suit No. 261 of 1949 was filed by the shebaits against Satyadhan Ghosal and his co-sharers in their personal capacity. That suit was one for ejectment. In that suit neither Rasananda Jana nor the present petitioner Deo Karan Agarwalla was made a party. Ultimately their suit was decreed ex parte on the 4th May 1949. On the 25th April, 1949 the shebaits opposite parties Nos. 1 to 19 instituted Title Suit No. 18 of 1950 against the present petitioner Deo Karan Agarwalla and Rasananda Jana for a permanent injunction restraining the petitioner from erecting any structure on the disputed land upon the allegation inter alia that the present petitioner was a trespasser and had no title to the land. That suit was contested by the present petitioner upon the ground inter alia that the decree obtained in Title Suit No. 261 of 1949 was a collusive one, that it had the effect of a surrender of the tenancy by Satyadhan Ghosal and his co-sharers, that the present petitioner had been elevated to the position of a direct tenant under the debutter estate and that he had acquired a right of occupancy on the disputed land. This suit namely Title Suit No. 18 of 1950 was decreed by the trial Court in part and it was held by the trial Court inter alia that the present petitioner had become a direct tenant under the debutter estate that the decree obtained by the shebaits on the 4th May 1949 in Title Suit No. 261 of 1949 was collusive and that the status of the present petitioner was that of an occupancy raiyat. Ultimately a mandatory injunction was passed against the present petitioner in that suit. The present opposite parties Nos. 1 to 19 preferred an appeal against the decision of the trial court and there was also a cross-objection by the present petitioner. The appeal was Title Appeal No. 169 of 1952. In the appellate Court the appeal took 'a peculiar turn', to use the words of the learned Judge. The learned Advocate; for the shebaits appellants gave out that he did not like to press his prayer for injunction which had been refused by the trial Court if the issue as to status was left open for the purpose of that appeal. In spite of protest by the learned Advocate for the respondents who were Deo Karan Agarwalla and Rasananda Jana the learned Judge left the question of status open and undecided with the following! observations 'In this new context it will not be necessary to go into the question of status or to consider the effect of the ejectment decree upon the continuance of the tenancy held by Agarwalla. I will, therefore, leave this question open and undecided'. Ultimately the appeal was dismissed by the learned Additional District Judge but the cross-objection was allowed in part. Against the decision of the learned Additional Judge Deokaran Agarwalla who was defendant No. 1 in Title Suit No. 18 of 1950 and who is the present petitioner preferred a second appeal which was disposed of by Renupada Mukherjee J. It appears from the judgment of Renupada Mukherjee J. that Dr. Gupta appearing on behalf of the defendant appellant had contended that the question of the status of the appellant namely the present petitioner should not have been left open. That objection, however, was not upheld by the court. Ultimately, however, the appeal was allowed and the order of mandatory injunction was set aside.

3. It has been necessary to refer to the history of the previous litigation in order to arrive at a proper decision regarding the question in controversy before me. Before proceeding further it may be mentioned that on the 28th January, 1950 the shebaits decree-holders put the decree in Title Suit No. 261 of 1949 into execution and applied for police help in the matter of delivery of possession as resistance was offered to the delivery of possession. The present petitioner objected to the delivery of possession contending inter alia that the decree was collusive, that the petitioner is a tenant under the Bengal Tenancy Act and was not bound by the decree and that he was in peaceful possession in his own right and in his own interest. As he was unsuccessful in respect of the objections raised by him in the lower court, he came up before this Court and obtained a value in Civil Revision No. 1572 of 1950 which was disposed of by Roxburgh J. who directed investigation in the case of the objector under Order 21 Rule 97 of the Code of Civil Procedure before he could be ousted. This is how the petitioner under Order 21 Rule 97 of the Code of Civil Procedure by the decree-holders came up for disposal before the lower court and the learned Munsif has disposed of the same by his order No. 103 dated the 10th January 1958 in Misc. Case No. 161 of 1958. The learned Munsif has held inter alia that the present petitioner being a sub-tenant under the judgment-debtor cannot have a right to be in possession of the property on his own account, that is, his right to be in possession on his own claim is contrary to the accepted rights in law, and that he cannot come within the meaning of bona fide claimant. Ultimately the application of the decree-holders has allowed and they were directed to be put into possession of the suit land.

4. The first question for decision is whether this Court ought to interfere in revision with the order passed by the lower court seeing that the present petitioner has an alternative remedy by way of suit under Order 21 Rule 103 of the Code of Civil Procedure. In this connection my attention, has been drawn to certain cases, viz., the case of Bhim Nack v. Chakradhar Maity : AIR1930Cal348 where it was pointed out by Rankin C. J. that as a rule the High Court does not interfere in revision when there is another and better remedy open to the party. In that particular case this Court did not consider it necessary to interfere in revision as the auction purchaser had a remedy by a suit under Order 21 R. 103 of the Code. In the case of Indu Bhusan Das v. Hari Charan Mondal : AIR1931Cal385 it was pointed out by Panckridge J. that it is a question to be decided in the circumstances in each case whether a court will in revision go into the matter or relegate the party to a suit. In that particular case his Lordship observed further that having regard to the comparatively complicated nature of the facts before the learned Munsif and to the contention that he has misapplied the onus of proof occasioning thereby an erroneous conclusion of facts that was a case with which it was extremely difficult to deal in revision and one which could be more satisfactorily decided in a separate suit. The matter came up for consideration again in a fairly recent Bench decision in the case of Tulsi Charan Das v. Subal Charan Das, : AIR1952Cal9 . In that case it was pointed out that though the remedy by a suit under Order 21 Rule 103 of the Code is available yet it is no bar against maintainability of an application under Section 115 of the Code of Civil Procedure. It was further pointed out that in a fit case the Court could revise the order under Section 115 of the Code of Civil Procedure although there is a remedy by way of suit. The instant case has been argued before me at considerable length and after hearing the learned Advocates and considering all the circumstances I have reached the conclusion that this is a fit case for application of the revisional powers of this Court under Section 115 of the Code of Civil Procedure.

5. I shall now turn to the main point in controversy before me. It has been contended before me on behalf of the petitioner that the decision of the Court below is vitiated by a wrong approach. Under Order 21 Rule 99 of the Code of Civil Procedure when resistance is offered to a decree-holder in the execution of the decree, if the court is satisfied that the resistance was occasioned by any person other than the judgment-debtor claiming in good faith to have a right to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the court shall make an order dismissing the application. It is to be seen whether there is any substance in the contention urged on behalf of the petitioner that he claims in good faith to have a right to be in possession of the property on his own account or on account of some person other than the judgment-debtor. The learned Munsif has not accepted the bona fide of the present petitioner and he has held that as the petitioner is a sub-tenant he is bound by the decree obtained by the shebaits decree-holders in Title Suit No. 261 of 1949 on the 4th May 1949. In reaching this conclusion he has sought to follow the principle laid down in the case of Yusuf v. Jatis Chandra Banerjee : AIR1932Cal241 . There has been some controversy as regards the correct legal position in Indian law in respect of this point, as was pointed Out by Mukherjea J., as he then was in the Division Bench case of Sailendra Nath Bhattacharjee v. Bijanlal Chakravartti : AIR1945Cal283 . Ultimately the conclusion reached by their Lordships was as follows:

'In our opinion, therefore, a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee, if the eviction is based upon a ground which determines the under-lease also, unless he succeeds in showing that the judgment was vitiated by fraud or that the lessee collusively suffered the decree to be passed against him. If, however, the decree for possession proceeds on a ground which does not by itself annul the sublease, the decree would not be binding on the sub-lessee, nor could the sub-lessee be evicted in execution of the decree if her acquired the statutory right or protection, e.g., under the Bengal Tenancy Act which he could assert against the lessor.'

6. Against the background of these observations one has to recall the specific case set up by the present petitioner in his written statement in Title Suit No. 18 of 1950 to which reference has been made before. Reference has already been made also to the details of the objections raised by the present petitioner namely that the decree in Title Suit No. 261 of 1949 was a collusive one, that the present petitioner had been elevated to the position of a direct tenant under the debutter estate and that he acquired a right of occupancy in the disputed land. That the defence set up by the present petitioner on that occasion was not an imaginary one is clear from the findings arrived at by the trial court in that suit namely Title Suit No. 18 of 1950. Reference has already been made to the relevant findings of the trial Court. It is true that so far as the appellate court is concerned those findings regarding the status etc. were left open. The fact remains, however, that the specific findings of the trial court as regards status were not set aside. Can it be said in the circumstances considering the nature of the defence set up on that occasion and the nature of the findings at least of the trial court which were definitely in favour of the case of the contesting defendants that the present petitioner has failed to prove his good faith in claiming to have a right to be in possession of the property on his own account or on account of some person other than the judgment-debtor? The matter has to be considered in the background of all the circumstances. In order to succeed in defeating the attempt of the decree-holders to set delivery of possession through the coercive process of the court it is not necessary that the objector, namely, the present petitioner must establish definitely his right to be in possession of the property on his own account or on account of some person other than the judgment-debtor. All that the court has to see in this connection is whether the resistance occasioned by petitioner can be said to have been by a person who claims in good faith to have a right to be in possession of the property on his own account or on account of some person other than the judgment-debtor. My attention was drawn in this connection by the learned Advocate for the opposite parties to the sworn testimony of the petitioner and it was contended that the evidence) of the petitioner himself was sufficient to show that he was not a bona fide claimant. The evidence of the petitioner who is after all a layman has, however, to be considered against the background of the precedent circumstances to some of which reference has been made by me already. If the specific defence set up by the present petitioner in his written statement in Title Suit No. 18 of 1950 as regards his status and other relevant matters be considered--a defence which, I may repeat, found favour with the trial court and which was not expressly set aside by the higher court--the petitioner can very well contend that he is at least a bonafide claimant. Without expressing any opinion as to whether that defence was true or not I am of opinion that so far as the limited scope of the present proceeding is concerned, the court ought not to shut its eyes to the nature of the defence. If there be any truth in that defence it can well be argued on behalf of the present petitioner that he is not bound by the decree in Title Suit No. 261 of 1949 to which neither he nor Rasananda Jana whose land he had auction-purchased was a party. It is not lightly that a court should allow its coercive processes to be utilised by a decree-holder without considering seriously the nature of the objections raised by the register. In my opinion, the learned Munsif passed his order in favour of the decree-holders and directed them to be put into possession of the suit land without giving duel weight to the case of the present petitioner. It is significant that the learned Munsif has not considered it fit to give at least a moment's consideration to what happened in Title Suit No. 18 of 1950.

7. In the result, therefore, I am of opinion that this is a fit case calling for my interference in exercise of my revisional jurisdiction.

8. The order of the learned Munsif dated the15th January 1958 is set aside and the Rule is madeabsolute with costs.


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