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Nalinakha Sinha v. Ram Taran Pal And Ors.
Factual and Procedural Background
The suit arises out of competing claims to a patni (a tenancy or proprietary interest) within a zamindari. Defendant 1 was the zamindar and had given a usufructuary mortgage of the property to defendants 2 to 5 with possession. Within the zamindari there was a patni alleged to have been in the possession of pro forma defendants 7 to 12.
Defendants 2 to 5, being in possession of the zamindar’s interest, brought the patni to sale under Regulation 8 of 1819 on the 1st Jeyth 1325 B.S.; at that sale plaintiff 1 purchased the patni and is alleged to have conveyed an 8-anna share to plaintiff 2. The plaintiffs thereafter did not pay the patni rent. For arrears for the year 1326 B.S., the patni was again put up to sale on the 1st Jeyth 1327 B.S. (under the same regulation) and was purchased by defendant 1 (the zamindar). Defendant 1 then created a patni in favour of defendant 6.
The present suit was instituted on 18 May 1921. The plaintiffs originally sought a declaration that the sale on the 1st Jeyth 1327 B.S. was illegal and void and did not affect their rights, alleged that they were in possession notwithstanding the regulation sale, and sought confirmation of possession. The Subordinate Judge dismissed the suit, deciding inter alia that the plaintiffs were out of possession and therefore could not maintain a merely declaratory suit under Section 42 of the Specific Relief Act; that defendant 2 was entitled to sell under Regn. 8, 1819; and that the notices required by the regulation were duly served.
Only plaintiff 2 appealed to the District Judge (plaintiff 1 did not appeal and was not a party below). Before the District Judge, plaintiff 2 applied to amend the plaint to add a prayer that if the Court held the plaintiffs were dispossessed, a decree for khas possession might be made in their favour and they be directed to pay ad valorem court-fee. The District Judge allowed that amendment on 29 April 1924, then held that maintainability no longer arose, decided other contested issues (finding against the plaintiffs on whether the predecessor of defendants 2–5 had the right to sell and whether the usufructuary mortgage was invalid), but decided the service of notices in favour of the appellant (plaintiff 2). The District Judge allowed the appeal, declared the patni sale void, and restored the plaintiffs to possession, ousting the defendants. Defendant 6, who derived his title from defendant 1’s purchase in Jeyth 1327 B.S., is the appellant in the current appeal to the Court whose opinion is provided.
Legal Issues Presented
- Whether the suit as originally framed or as amended could be maintained other than as a suit under Section 14, Regulation 8 of 1819 (i.e., whether a sale under the patni regulation can be set aside except by a suit under that regulation).
- Whether the amendment to the plaint (allowed by the District Judge on 29 April 1924) was properly allowed and, if allowed, what its legal effect was (including effect on limitation and the rights acquired by third parties).
- Preliminary procedural questions: (a) whether the absence of plaintiff 1 as a party to the appeal rendered the appeal incompetent, and (b) whether acceptance of costs by the respondents at the interlocutory hearing precludes them from challenging the allowance of the amendment on appeal.
Arguments of the Parties
Appellant's Arguments (defendant 6)
- The suit is not a suit as contemplated by Section 14 of Regulation 8 of 1819; under that regulation the only remedy for previous patnidars to reverse a patni sale is the suit provided in Section 14—this suit is not that suit.
- The amendment to the plaint ought not to have been allowed because, at the time it was allowed, the plaintiffs’ right (to sue under the regulation) was barred by limitation and the amendment prejudiced the valuable right acquired by defendant 6 (who had taken a patni from defendant 1 and had paid selami).
- An attempt was made to show that the District Judge’s decision on the service of notices was based on insufficient grounds and erroneous reasoning (though the present Court did not reassess those findings of fact in second appeal).
Respondent's Arguments (plaintiff 2)
- The appeal was not maintainable because plaintiff 1, who was benefited by the District Judge’s decree but was not made a party to the appeal in this Court, was not impleaded; therefore, the appeal should be incompetent.
- Because the District Judge heard pleaders on the amendment and awarded costs to the respondents for that hearing (costs which have been realized), the respondents should be precluded from contesting on appeal that the amendment was wrongly allowed.
- The amendment was merely a verbal amendment that did not alter the nature of the suit; all necessary facts were already stated in the plaint, and reliance was placed on the case of Chandran Dass v. Amir Khan (A.I.R. 1921 P.C. 50) to support the allowance of amendment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chandran Dass v. Amir Khan, A.I.R. 1921 P.C. 50 | Authority relied on by respondent to support allowance of an amendment in particular circumstances. | The Court noted that strong reliance was placed on this decision but found the present case to be materially different in essential respects; the Court distinguished that authority rather than applying it to permit the amendment in the present case. |
Court's Reasoning and Analysis
The Court addressed preliminary objections first:
- Absence of plaintiff 1 as a party in this appeal: The Court rejected the contention that the appeal was incompetent for that reason. The Court observed that plaintiff 1 had not appealed below and could, if impleaded here, have disavowed any interest in the appeal and sought costs; no authority was cited to show the absence of that plaintiff made the appeal infructuous, and therefore the appellant was not bound to make plaintiff 1 a party in this second appeal.
- Acceptance of costs at the interlocutory hearing: The Court rejected the argument that the respondents’ acceptance of the costs for the hearing on the amendment precluded them from contesting the allowance of the amendment on appeal. The Court held that allowing costs to the unsuccessful party does not bar that party from challenging the interlocutory order on appeal.
On the substantive questions the Court proceeded as follows:
- Nature and form of remedy under the patni regulation:
The Court emphasised that a sale held under Regulation 8 of 1819 can only be set aside by a suit brought under Section 14 of that regulation. Section 14 provides a specific remedy: a person contesting the zamindar’s right to make the sale may sue the zamindar for reversal of the sale, the purchaser must be made a party, and upon reversal the Court must take care to indemnify the purchaser against loss at the charge of the zamindar or the person at whose suit the sale was made. The Court regarded the statutory form of the suit and the statutory requirements (including indemnity to the purchaser) as mandatory in character for challenging a regulation sale.
- Limitation and timing:
The Court noted that the special suit under Section 14 would be subject to limitation under Article 12(d) of the Limitation Act and must be brought within one year. The Court contrasted limitation periods: the limitation for the suit as originally framed was six years, and the period for a suit for possession (as would result from the amendment) was twelve years. The Court found that the right of the purchaser to bring a suit against the zamindar was already barred when the amendment was allowed on 29 April 1924.
- Character of the present suit and the effect of amendment:
The Court examined the pleadings and parties and concluded that the present suit, both as originally framed and after amendment, could not fairly be treated as a suit under the patni regulation. The suit was brought against multiple parties (zamindar, purchaser and defendant 6 who derived title from the purchaser, and previous owners), and the District Judge’s decree contained no provision for indemnification of the purchaser — a step the statute required in a Section 14 suit. These facts indicated the District Judge did not treat the case as a statutory Section 14 suit.
The Court further observed there was no explanation why a proper form of action under the regulation had not been taken earlier, and that suits to set aside patni sales were common knowledge; the plaintiffs did not show any misapprehension that would justify their choice of form.
- Effect on third-party rights and discretionary refusal to permit amendment:
The Court concluded that allowing the amendment in the circumstances would prejudice valuable rights acquired by defendant 6 (who had paid a considerable sum as selami to obtain a patni). Because the amendment would alter the nature of the remedy and adversely affect the purchaser’s vested rights and limitation, the Court held that on general principles the amendment should not have been allowed.
- Distinguishing relied authority:
Although the respondent relied on Chandran Dass v. Amir Khan where an amendment was allowed under peculiar circumstances, the Court found that case materially different in essential respects and declined to follow it as a controlling precedent for permitting the amendment here.
Holding and Implications
Holding: The appeal is allowed. The plaintiffs' suit is dismissed with costs.
The Court ordered that plaintiff 2 alone will be liable for the costs in this Court as well as in the lower appellate Court. The Court thereby reversed the District Judge’s allowance of the amendment and the consequential decree restoring the plaintiffs to possession.
The opinion does not discuss broader doctrinal consequences or announce a new rule of general applicability beyond the application of the Regulation and Limitation provisions to the facts; it confines its decision to the direct effect on the parties (dismissal of the plaintiffs' suit and costs as stated).
(Judgment delivered by Mallik, J.; the manuscript records "Mallik, J." followed by the note "I agree." indicating concurrence.)
1. This is an appeal by defendant 6 against the judgment and decree of the District Judge of Murshidabad reversing those of the Subordinate Judge of that place. Two plaintiffs brought the suit out of which this appeal has arisen. Defendant 1 was the zamindar of the property in question. He gave a usufructuary mortgage of the property to defendants 2 to 5 with possession. "Within the zamindari there was a patni which is said to have been in the possession of pro forma defendants 7 to 12. Defendants 2 to 5 being in possession of the interest of the zamindar brought the patni to sale under Regti8, 1819 on the 1st Jeyth 1325 B.S. At the sale the patni was purchased by plaintiff 1. It is alleged that plaintiff 1 conveyed 8-annas share in the patni to plaintiff 2. The plaintiffs, after their purchase, did not pay the patni rent. For the arrears of the year 1326 B. Section the patni was again put up to sale on the 1st Jeyth 1327 B.S. under Regn. 8, 1819 and it was purchased by defendant 1. Defendant 1 being the zamindar himself, he created a patni with regard to the property in favour of defendant 6. The present suit was brought on the 18th May 1921. The question is as to the nature of the suit. The plaintiffs originally brought the suit as one for a declaration that the sale on the 1st Jeyth 1327 is illegal and void and does not affect the plaintiffs' right. They alleged that they, the plaintiffs, ware in possession notwithstanding the regulation sale; and they made various statements as regards the right of defendants 2 to 5 to the property in question and also with regard to the service of notices required under the regulation. There was also a prayer for confirmation of possession. Various questions were raised in the trial Court. The Subordinate Judge decided the important issues against the plaintiffs and dismissed the suit. The principal questions decided by him were that the plaintiffs were out of possession and could not therefore maintain a suit for a merely declaratory decree under Section 42, Specific Relief Act; that defendant 2 was entitled to bring the patni to sale under Regn. 8, 1819; and that the notices required to be served under the regulation were duly served.
2. Against that decree only plaintiff 2 preferred an appeal to the Court of the District Judge. Plaintiff 1 was not a party to the appeal either as appellant or as respondent. Before the appellate Court the appellant, plaintiff 2, only applied for amendment of the plaint. Notwithstanding the objection of the respondents the learned Judge allowed the amendment asked for, which was to this effect : That if the Court holds that tha plaintiffs were dispossessed by the defendants a decree for khas possession may be made in favour of the plaintiffs and the plaintiffs may be directed to pay the ad valorem Court-fee. This amendment was made on the 29th April, 1924. After having allowed the amendment the District Judge wa3 of opinion that the question as regards the maintainability of the suit did not: any longer arise. He next decided the other questions raised in the case, namely, first, whether the predecessor of defendants 2 to 5 had any right to put up the property to sale under Regn. 8, 1819; and, secondly, whether the usufructuary mortgage in favour of the predecessor of those defendants was invalid and void in law. These two questions he decided again3t the plaintiffs. The third question was with regard to the service of the requisite notices. This he decided in favour of the appellant and thereupon he allowed the appeal and made this decree : that the patni sale in question be declared void and the plaintiffs be restored to possession of the patni mahal (as it stood before the sale in question) ousting the defendants therefrom. Defendant 6. who took the patni from defendant 1 after his auction purchase in Jeyth 1327 B.S., is the appellant in this Court and he has made plaintiff 2 and the other defendants respondents in this appeal.
3. The contention on behalf of the appellant is : first, that the suit is not a suit as contemplated under Section 14, Regn. 8, 1819 and that it is the only suit; that is allowed to the previous patnidars under the law for reversing the patni sale under the regulation. The second contention is that the amendment of the plaint ought not to have bean allowed having regard to the fast that at the time when the amendment was allowed the right of the plaintiff was barred by limitation and the valuable right acquired by defendant 6, the appellant before us, was affected by this amendment. It was also endeavoured on behalf of the appellant to show that the decision of the lower appellate Court with regard to the question of notices was arrived at upon insufficient grounds and on erroneous reasonings. With regard to the last ground it is not possible for us to examine the findings of the learned Judge in the Court below. These are questions of fact and I do not think we can interfere with his finding in second appeal even if the reasons of the learned Judge be unsatisfactory. The only questions which remain to be decided are, first, with regard to the question of amendment; secondly, whether the suit as framed is maintainable under the law.
4. Before I deal with the arguments on behalf of the appellant the ground should be cleared by disposing of two objections raised on behalf of the respondent-plaintiff 2 who will henceforth be described as the respondent. Defendant 1 appears in this Court and he supports the argument of the appellant. It is urged, first, on behalf of the respondent that this appeal is not maintainable on the ground that plaintiff 1 ha3 not been made a party respondent. Plaintiff 1 was not a party in the lower appellate Court. He did not appeal against the decree of the Subordinate Judge and it may be taken that he was content with the decree that was passed by the trial Court. It is urged that the effect of the decree of the District Judge is that it was in favour of the appellant before the Oourt, that is plaintiff 2, as well as plaintiff 1 who was no party to the appeal and that in order to have the decree set aside by his appeal here, defendant 6 was bound to implead plaintiff 1 along with plaintiff 2 in this Court. Not having done so the appeal is incompetent. In my judgment no substantial reason has been shown in support of this contention. If the appellant had impleaded that plaintiff in this Court he might have coma and said:
I have no concern with the case since it was disposed of by the trial Court. I wag satisfied with that decree and did not further question the right of the defendants the appellant having dragged rue up here unnecessarily is bound to pay me the costs, whatever might be the result of his appeal.
5. What answer then could the appellant have to that claim? No authority has been cited before us in support of the contention that the absence of that plaintiff makes the appeal infructuous. I do not therefore think that the appellant was bound to make that plaintiff a party to this second appeal and that the appeal should fail on that ground.
6. The next objection urged is this : That with regard to the application for amendment of the plaint before the District Judge he heard the pleaders of both sides and he made the order in favour of the plaintiff-appellant allowing the respondents' costs for that hearing. As the respondents have realized the costs, it is not open to them to contend here on appeal that 6he amendment was wrongly allowed. I am unable to accept this contention. If an interlocutory order is made in favour of one party but for some reason costs are allowed unconditionally to the unsuccessful party, I do not think that the unsuccessful party is precluded from questioning the order on appeal by accepting the costs of the hearing. This argument seams to me to be of no substance.
7. I shall next deal with the questions raised by the appellants namely whether the amendment was properly allowed or not and if so alloyed what would be its effect. One defeat in the order of amendment is that the plaint was the plaint of two plaintiffs. The application for amendment was made by only one of them, without any reference to the other. Whether the plaint of two persons can be amended on the application of one of them seams to be a matter of doubt, but apart from that, the question in this case is with regard to the substance of the amendment. It is argued on behalf of the appellant that this amendment takes away the valuable right which the appellant had acquired by reason of limitation. The respondent on the other hand contends that all the necessary facts were stated in the plaint and the amendment was only a varbal amendment which does not alter the nature of the suit. Strong reliance is placed on the case of Chdran Dass v. Amir Khan A.I.R. 1921 P.C. 50. It is argued that the present case bears a strong resemblance to the case before the Judicial Committee.
8. There an amendment was allowed under peculiar circumstances which was asked for in the trial Court but was refused. That case and the present seem to me to be quite different in essential matters, which I need not state in detail. It is quite true that where a suit is brought for declaration of title and confirmation of possession, the Court generally allows an amendment asking for recovery of possession if it is found necessary to give the plaintiff the appropriate relief. But the difficulty in the present case does not seem to me to lie there. The sale is in this case held under the provisions of the statute and the statute provides how a suit can be brought for setting aside a sale held under it. In my judgment a sale held under the regulation can only be set aside by a suit as provided under Section 14, Regn. Section 1819 and it cannot be challenged by proceedings of a different character. The relevant provisions of the law are contained in paras. 2 and 3 Clause 1, Section 14, Regn. 8,1819. They are these:
It shall, however, be competent to any party desirous of contesting the right of the zamindar to make the sale, whether on the ground of there having bean no balance due, or on any other ground, to sue the zimindar for the reversal of the same, and upon establishing a sufficient plea, to obtain a decree with full costs and damages. The purchaser shall be made a party in such suits, and upon decree passing for reversal of the sale, the Court shall be careful to indemnify him against all loss, at the charge of the zemindar or person at whose suit the sale may have been made.
9. Such a suit as this must be brought within one year under Article 12(d) of the Limitation Act. The limitation for this suit as originally framed is six years and the period of limitation for the suit for possession, as amended, is 12 years. This suit cannot be held to be one under the regulation. The suit was brought not only against the zamindar and the purchaser but also againsi defendant 6 who had derived his title from the purchaser as well as the previous owners of the patni before the sale of 1325. Under these circumstances it can hardly be held that the present suit as originally framed or even after the amendment was one for setting aside the sale under the patni regulation. That the District Judge who allowed the amendment did not treat the suit as such is apparent from the fact that no provision was made in his decree for indemnifying the purchaser at the auction sale. The right of the purchaser to bring a suit against the zemindar was barred when the amendment was allowed on 29th April, 1924; It cannot also be said that the plaintiffs brought the suit in the present form under any misapprehension. Suits for setting aside a patni sale are quite common and it is not explained why the suit was brought in such a form or why no proper amendment was asked for in the trial Court in spite of an objection raised by the defendants. As a rule we are always willing to allow amendment of pleadings in a proper case, and might have allowed it in this case even here, in order to make this a suit under the patni regulation had not the rights of others been prejudicially affected. Defendant 6 has paid a considerable sum of money as selami in order to obtain a patni from the zamindar. By allowing an amendment the valuable right which defendant 6 has obtained on the ground of limitation will be prejudiced. On general principles therefore such amendment should not be allowed.
10. Under these circumstances in my judgment this appeal should succeed and the plaintiffs' suit dismissed with costs Plaintiff 2 alone will be liable for the costs in this Court as well as in the lower appellate Court.
Mallik, J.
11. I agree.
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