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Sasanka Sekhar Hazra and anr. Vs. Charu Chandra Dutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 408 of 1948
Judge
Reported inAIR1953Cal669
ActsCode of Civil Procedure (CPC) , 1908 - Section 11 - Order 21, Rules 66 and 90; ;Tenancy Law; ;Bengal Tenancy Act, 1885 - Section 162
AppellantSasanka Sekhar Hazra and anr.
RespondentCharu Chandra Dutta and ors.
Appellant AdvocatePanchanan Choudhury and ;Nirmal Chandra Choudhury, Advs.
Respondent AdvocatePurushottam Chatterjee, Adv.
DispositionAppeal dismissed
Cases ReferredJayarama Aiyar v. Vridhagiri Aiyar
Excerpt:
- .....alleged to have been purchased by the landlord defendant on 20-8-1940. in the execution petition, sale proclamation and the sale certificate there is alleged to have been misdescription of the holding in that plot numbers were described therein as c. s. plots 12049, 12050 and 12051 (instead of c. s. plot 8041) and the area was also wrongly stated to be 90 acres instead of 3.02 acres. on an application for amendment to the executing court by the defendants appellants who alleged that they detected the mistake at the time of taking delivery of possession through court the amendment was allowed on 10-9-43 and the sale certificate was brought in conformity with khatian 2766. subsequent applications by the present plaintiff under section 174, b. t. act under sections 47 and 151, c. p. c. and.....
Judgment:

Guha, J.

1. This appeal by the plaintiff arises out of a suit for declaration of title and confirmation of possession in respect of C. S. plot No. 8041 measuring 3.02 acres of Shali land recorded in the khatian No, 2766 of Mouza Bara Balun in the name of pro forma defendants 2 to 4. The plaintiff who was a mortgagee purchased the above holding by a kabala on 28-10-1940. In execution of a rent decree, however, the same holding is alleged to have been purchased by the landlord defendant on 20-8-1940. In the execution petition, sale proclamation and the sale certificate there is alleged to have been misdescription of the holding in that plot numbers were described therein as C. S. plots 12049, 12050 and 12051 (instead of C. S. plot 8041) and the area was also wrongly stated to be 90 acres instead of 3.02 acres. On an application for amendment to the executing Court by the defendants appellants who alleged that they detected the mistake at the time of taking delivery of possession through Court the amendment was allowed on 10-9-43 and the sale certificate was brought in conformity with Khatian 2766. Subsequent applications by the present plaintiff under Section 174, B. T. Act under Sections 47 and 151, C. P. C. and under Order 47, Rule 1, Civil P. C. proved abortive and hence the present suit by the plaintiff.

2. The suit has been dismissed by both the lower Courts.

3. The main points urged on behalf of the appellant are that as it has been found that there was no publication of sale proclamation on C. S. plot 8041 nor was that plot mentioned in the original execution petition, sale proclamation or sale certificate that plot to which the plaintiff had acquired valid title by his purchase on 28-10-40 from the owners (Pro forma defendants 2 to 4) would not pass to the respondent by virtue of his auction purchase and the latter was estopped from questioning the plaintiff's title, notwithstanding the order of amendment passed by the executing Court on 10-9-1943 in favour of the defendant behind the back of the plaintiff.

4. It is contended on behalf of the respondent that the suit is barred by res judicata in view of the failure of the previous application under Section 174, B. T. Act, Section 47, Civil P. C. etc. in which it was urged that C. S. plot 8041 did not pass at the execution sale. As pointed out, however, by the trial Court the executing Court had no jurisdiction to decide whether the plaintiff's title to the suit land was affected by the execution sale--a point which has arisen for decision directly in the present suit and as such no question of res judicata can arise.

5. It is next argued on behalf of the respondent and that is the main point in dispute between the parties -- that in spite of the mistakes regarding the plot numbers and area in the sale proclamation, it was abundantly clear as to what was being sold: the rental, the number of the holding, the name of the tenants, the name of Mouza were all correctly described C. S. plots 12049, 12050, 12051 did not appertain to khatian 2766 of Barabalun Mouza nor did those tenants (viz., Pro forma defendants 2 to 4) held those lands nor is it anybody's case that they had any other jama of Rs; 7/-. As pointed out by the lower Appellate Court, the paramount description in the sale certificate or sale proclamation is ordinarily the general description of the holding sold and description of the plot number is secondary (cf. Section 162, B.T. Act). In view of the circumstances mentioned above, there could be no genuine doubt if the identity of what was being actually sold and the lower Appellate Court was justified in inferring that the sale proclamation was served on the real land and not on imaginary dags mentioned in the sale proclamation.

6. On behalf of the appellant reliance has been placed inter alia on the case of -- 'Thakur Barmha v. Jiban Ram', 41 Ind App 38 (PC) (A) wherein it was laid down that 'that which is sold in a judicial sale of this kind can be nothing but the property attached and that property is conclusively described in and by the Schedule to which the attachment refers' i.e. the schedule of the attached property in the proclamation of sale. In the present case, we have to deal with description and not identity unlike the Privy Council case referred to above. In the present case, part of the description in the original sale proclamation was incorrect: wrong plot numbers and wrong area which did not and could not possibly be referable to the holding sought to be sold were mentioned, but in spite of that the identity of the jama put up for sale could not be in serious question. What was actually offered for sale and bid for was the jama in arrears viz., the jama of Rs. 7/- hold by pro forma defendants 2 to 4 in Bara Balun Mouza; that was correctly described in the sale proclamation though it contained erroneous statement of some particulars viz., area and plot numbers.

7. Another case relied upon by the learned Advocate for the appellant is -- 'Nazir Ahshan v. Dalip Mahton', 18 Ind Cas 725 (Cal) (B) where it has been held that a Court has no jurisdiction to amend a certificate of sale so as to show the purchase of a larger share of the property than what was stated in the sale proclamation. This is not, however, what has happened in the present case. That case might be attracted had the original sale proclamation mentioned a portion of C. S. plot 8041 as offered for sale whereas the amended sale certificate mentioned a larger portion or the whole of C. S. plot 8041 as having been actually sold; in the present case, the original sale proclamation did not contain any mention of C. S. plot 8041 at all.

8. It is hardly necessary to deal in detail with several other cases referred to by the learned Advocate for the appellant e. g. --'Kuppusami v. Subbaraya', 13 Ind Cas 324 (Mad) (C) -- 'Jayarama Aiyar v. Vridhagiri Aiyar', AIR 1921 Mad 583 (D) and an unreported decision of this Court -- 'Civil Rule No. 175 of 1949 (Cal) (E). Upon the facts of the present case, I agree in holding that the paramount description in the original sale proclamation was the jama in arrears; the erroneous description of certain details could not affect the validity of the sale of that jama.

9. The appeal is dismissed with costs.

10. Leave to appeal under Clause 15 of the Letters Patent has been asked for and is refused.


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