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Sailendra Nath Bose and ors. Vs. Charu Chandra Bannerji and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported inAIR1929Cal422,118Ind.Cas.341
AppellantSailendra Nath Bose and ors.
RespondentCharu Chandra Bannerji and ors.
Cases ReferredDeokali Koer v. Kedar Nath
Excerpt:
specific belief act (i of 1877), section 42 - decree for rent--suit by mortgagee of tenancy for mere declaration that decree is only money-decree, maintainability of--infructuous declarations, granting of. - .....defendants 1 to 30 from selling the attached properties by auction till the final disposal of the suit. prayer (kha) appears to have been subsequently withdrawn and prayer (ka) was rejected by the trial court inasmuch as there was no prayer for permanent injunction to the same effect. the courts below have decreed the suit in plaintiff's favour in terms of prayer (ka).3. apart from the objection that in instituting the suit the plaintiff was crying before he was hurt for it may just as well be that the mortgage would never be annulled even though the properties are sold with power to the purchaser to annul all encumbrances the suit for the declaratory relief which the plaintiff asked for in prayer ka in our opinion was not maintainable in. law. the declaration asked for is in substance.....
Judgment:

1. The suit out of which-this appeal has arisen has been decreed by both the Courts below.

2. The plaintiff's case was as follows : - There is a gariti jama comprised of about 900 bighas of land of which the holders were defendants 1 to 23, 24 to 29 and one Kedar Ghosh, and No. 30, owning respectively 5/6th, 1/12th and1 1/12th shares therein. Defendant 31 for himself aid also on behalf of his brother defendant 32 obtained a maurashii rnokarari lease of a 5/6fch share of the said jama from defendants 1 to 23 in 1308 B.S. at a rental of Rs. 303 and odd. Subsequently defendant 31 obtained settlements of a 1/12th share from defendants 24 to 29 and the said Kedar Ghosh at a rental of Rs. 30 and odd, and also a settlement of the remaining 1/12th share from defendant 30 at the same rental. Thereafter the interest of Kedar Ghosh passed to defendants 19 to 23 and defendant 32 sold his interest to defendant 31.Thus there were three separate jamas held by defendant 31 under three sets of landlords. Defendant 31 mortgaged these three jamas to the plaintiff along with other lands by a registered deed executed in 1326 B. S. for Rs. 5,000. The landlords, however, ignoring the existence of the separate jamas instituted two suits for rent treating all the lands as constituting one jama and as bearing a total rental of Rs. 364 and odd. One of these suits was No. 829 of 1923 in which defendants 31 and 32 were both impleaded as defendants. The other suit was No. 2308 of 1923 which was by all the landlords with the exception of defendant 21, and against defendant 31 only. Having obtained decrees in the aforesaid suits the said defendants 1 to 30 put up the lands to sale .alleging that they were the lands in arrears. The plaintiff then instituted the suit asking for the following reliefs : (Ka) that a declaration may be made to the effect that the two decrees aforesaid are really money decrees and the mahal in arrear cannot be sold with power to annul incumbrances under Ch. 14, Ben. Ten. Act ; (kha) that it may be declared that the lands attached form a maurasi mokarari intermediate ganti jama and not a non-transferable jyoti jama ; and (ka) that a temporary injunction may be granted restraining defendants 1 to 30 from selling the attached properties by auction till the final disposal of the suit. Prayer (kha) appears to have been subsequently withdrawn and prayer (ka) was rejected by the trial Court inasmuch as there was no prayer for permanent injunction to the same effect. The Courts below have decreed the suit in plaintiff's favour in terms of prayer (ka).

3. Apart from the objection that in instituting the suit the plaintiff was crying before he was hurt for it may just as well be that the mortgage would never be annulled even though the properties are sold with power to the purchaser to annul all encumbrances the suit for the declaratory relief which the plaintiff asked for in prayer ka in our opinion was not maintainable in. law. The declaration asked for is in substance merely a declaration as to the legal effect of two decrees passed by the Courts. If this declaration was asked for as auxiliary or introductory to some other relief or reliefs also asked for, Section 42, Specific Relief Act, would have had nothing to do with the matter and such a declaration would have rested on long established practice ; but as the relief for this declaration stands alone it is one which must be authorised by that section, which does not sanction every form of declaration but only a declaration that the plaintiff is entitled to any legal character or to any right to any property : see Deokali Koer v. Kedar Nath [1912] 39 Cal 704. The declaration asked for does not go anywhere near what Section 42, Specific Relief Act, contemplates. Indeed it is not even alleged that the plaintiff's status or right as mortgagee has ever been denied. Again if it be assumed that such a declaration is permissible, it will be simply instructions, without a relief in the shape of a permanent injunction, for, the Court in which the decrees are executed will in no way be bound by a declaration made by a different Court as to the character of the decrees under execution before it. It is well established that a Court will never make a declaration that is likely to be infructuous.

4. It has been brought to our notice that respondents 29 to 29a have died during the pendency of this appeal and their heirs have not been brought on the record. The appeal in so far as those respondents are concerned must be taken to have abated and to have proceeded without them. This, however, does not affect the appeal as against the other respondents which in our opinion, must succeed, and it is accordingly allowed, the decrees of the Courts below being set aside and the suit dismissed with costs in all the Courts.


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