Skip to content


Prativa Nath Roy Vs. Benode Behari Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1936Cal181
AppellantPrativa Nath Roy
RespondentBenode Behari Ghose and ors.
Excerpt:
- .....defendant 1 in a suit for a declaration that the plaint lands are not saleable in execution of a rent decree and for obtaining a perpetual injunction restraining defendant 1 from putting that land to sale in execution. the plaintiffs' case briefly stated is as follows:2. the disputed land previously belonged to the pro forma defendant 1 in tenancy right under kumar protiva nath roy, defendant 1. the latter in execution of a rent decree against the pro forma defendant 2 put the suit land to sale and one jatin saba purchased the same. the landlord again put the disputed land to sale in execution of a decree against jatin saha and this time krishna nath ghose purchased the tenancy. defendant 1 again put the suit land to sale in execution of a rent decree against krishna nath ghose and.....
Judgment:

Nasim Ali, J.

1. This is an appeal by defendant 1 in a suit for a declaration that the plaint lands are not saleable in execution of a rent decree and for obtaining a perpetual injunction restraining defendant 1 from putting that land to sale in execution. The plaintiffs' case briefly stated is as follows:

2. The disputed land previously belonged to the pro forma defendant 1 in tenancy right under Kumar Protiva Nath Roy, defendant 1. The latter in execution of a rent decree against the pro forma defendant 2 put the suit land to sale and one Jatin Saba purchased the same. The landlord again put the disputed land to sale in execution of a decree against Jatin Saha and this time Krishna Nath Ghose purchased the tenancy. Defendant 1 again put the suit land to sale in execution of a rent decree against Krishna Nath Ghose and plaintiff purchased the disputed land at that sale and took delivery of possession through Court: that thereafter defendant 1 brought a rent suit against the pro forma defendants 2 and 3, obtained a rent decree against them and is taking steps to put the disputed land to sale in execution of the said rent decree. Defendant 1, that is the appellant before me, resisted the claim of the plaintiff on the following grounds: (1) that in the settlement records which were prepared with the knowledge of the plaintiff, the names of the pro forma defendants were recorded with the knowledge and consent of the plaintiff; (2) that in the rent suit in which the rent decree in question was obtained the plaintiff made Tadbir on behalf of the pro forma defendants and deposed that Jatin Saha, Krishna Nath Ghose and the plaintiff were in fact the benamidars of the pro forma defendants, and (3) that the plaintiff was never in possession of any portion of the disputed land after his auction purchase.

3. The trial Court on a consideration of the evidence found that the plaintiff's title to the property was not at all affected by the sale. The trial Court found that the plaintiff did not know anything about the settlement operation. It was also found by the trial Court that the purchase in auction by the plaintiff was not a benami or mala fide one. The plaintiff's possession after the auction-purchase was also found. The trial Court also came to the conclusion that the conduct of defendant 1 in the rent suit in which the decree in question was obtained would go to show that defendant 1 himself was in collusion with the pro forma defendants 2 and 3. In this view of the matter the trial Court decreed the plaintiff's suit. On appeal the decree of the trial Court has been affirmed. Hence the present appeal by defendant 1.

4. Four points have been urged by the learned advocate for the appellant in support of the appeal, namely, (1) that Section 104-H, Sub-clause (8) is a bar to the present suit, (2) that in view of the facts admitted and found the plaintiff is estopped from contending that the decree is not binding on him, (3) that the prayer for perpetual injunction being discretionary, in view of the facts and circumstances of the case the Courts below did not exercise their discretion properly in granting plaintiff's prayer for perpetual injunction in this case; and (4) that in view of the provisions of Section 56, Clause (i), Specific Relief Act, this is not a fit case in which perpetual injunction should be granted, inasmuch as the plaintiff had equally efficacious relief for putting a stop to the sale by depositing the decretal amount in Court.

5. As regards the first contention, the obvious answer is that this is not a suit in respect of any rent or omission to settle any rent under Sub-section 104-A to 104-F.

6. As regards the second point, the issue about estoppel was decided against the appellant in the trial Court. As has been already pointed out the trial Court definitely found that the plaintiff was not at all aware of the settlement operation and consequently it was not possible for him to represent to the Settlement authorities that pro forma defendants 2 and 3 were to represent the tenancy in the settlement papers. In fact the finding of the trial Court that defendant 1 himself was in collusion with the pro forma defendants 2 and 3 would show conclusively that the defendant 1 was not misled in any way by any act or representation on the part of the plaintiff. Again when the appeal was taken to the lower appellate Court it appears that no such ground was specifically taken before the lower appellate Court. Again the ground of estoppel was also not taken in the memorandum of appeal to this Court. Estoppel is not a pure question of law. Certain necessary facts have got to be found out in order to enable the Court to apply the doctrine of estoppel. The plea of estoppel, as has been stated above, was no doubt taken in the trial Court, but the finding of the trial Court was against the defendant. That finding was not apparently challenged before the lower appellate Court. Under these circumstances, there appears to be no substance in this contention.

7. As regards the third point it may be observed that according to the findings of the Courts below the decree is a collusive decree and the plaintiff's right is not at all affected by the decree and cannot be affected by the sale which will be held in execution of that decree. In these circumstances, the defendant is threatening to invade the plaintiff's right to the property and the Court therefore acted properly in restraining the defendant from selling the property. Reliance was placed by the learned advocate for the appellant on Section 56 (a), Specific Relief Act, which lays down that:

An injunction cannot be granted to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought unless such restraint is necessary to prevent the multiplicity of proceedings.

8. Now what would be the effect if the defendant be not restrained from selling the property at this stage? The property would be sold and in due course the auction-purchaser would get possession of the property through Court. Both the plaintiff and the purchaser will claim possession. The result would be that there would be a multiplicity of proceedings in future. It is therefore absolutely necessary that before the matter goes further, the dispute regarding title to this property should be settled once for all. It cannot be seriously disputed that as the plaintiff's right has been established the property is going to be wrongfully sold; the plaintiff's right to restrain the defendant from selling the property therefore follows as a matter of course. In view of the concurrent findings of the Courts below that the decree; which the defendant is trying to execute is a collusive decree and cannot in any way affect the interest of the plaintiff, it cannot be said that the order for injunction passed by the Courts below is not, proper.

9. As regards the fourth point, it is very difficult to appreciate the argument of the learned advocate. It is argued that the plaintiff has an equally efficacious remedy for preventing the sale of his property, as he can pay up the decretal amount and prevent the sale. No authority in support of this contention was cited before me and I am not aware of any principle or precedent which compels a person whose interest is not at all affected by a decree and against whom the decree is not at all binding to satisfy that decree. Under these circumstances, I cannot accept the contention of the learned advocate, that the plaintiff's prayer for injunction should be refused unless he pays the decretal amount.. The point taken by the learned advocate for the appellant therefore fails. The appeal is accordingly dismissed with costs. Leave to appeal under Section 15, Letters Patent, has been asked for in this case and is refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //