Tangor Majhi And Ors. v. Jaladhar Deari And Ors.

This appeal arises out of a suit by the Plaintiffs to have their right to a two annas share in a fishery declared and for khas possession of the same. Both the lower Courts have decided in favour of the Plaintiffs and against that decision the Defendants have appealed.

The facts about which there appears to be little or no dispute, are as follows:—This two annas share of the fishery was originally owned along with other properties by one Biseswar Biswas. Biseswar Biswas appears to have got into difficulties and was being pressed by his creditors. He died leaving four sons, Mati Lal, Rasik Lal, Panchanan and Rakhal Raj, of whom the two last-named were minors. In 1895, one Keshab Lal who was Bireswar's son-in-law obtained a money decree against Bireswar's four sons as representatives of their father. It appears that decree was passed with the consent of Rasik Lal one of the two adult sons, but no guardian-ad-litem was appointed for the minors, nor does there appear to have been any express sanction by the Court of the terms on which that decree was passed. In the following year Keshab Lal attached and brought to sale this two annas share of the fishery, purchasing it himself on the 21st July 1896. On the 16th May 1900, Panchanan, one of the two minor sons of Biseswar, sued to set aside the decree in favour of Keshab Lal and the sale in execution of that decree. That suit was originally filed in the Court of the Munsif at Magura and we understand that a written statement was put in answer to the plaint. On the 22nd March 1901, the Munsif returned the plaint to the Plaintiff Panchanan for presentation to the proper Court, holding that he had no jurisdiction to entertain the suit. On the 19th July 1901, the plaint was presented to, and the suit instituted in the Court of the Subordinate Judge at Jessore. While the suit was in the Court of the Subordinate Judge, namely, on the 18th September 1901, Keshab Lal granted a lease of this two anras share in the fishery to one Efajuddi for 10 years. On the 21st September 1901, Efajuddi sub-leased the two annas share to the present Plaintiff for the same term. On the 7th May 1902, the Subordinate Judge came to the conclusion that the Munsif in whose Court the suit by Panchanan had originally been filed had jurisdiction to entertain it and so returned the plaint to be filed again in the Munsif's Court, On the 20th May 1902, the plaint was again filed in the Munsif's Court. On the 27th February 1903, Panchanan and Keshab Lal came to terms. The suit was compromised, Panchanan paid Rs. 2,000 to Keshab Lal, and took a decree by which it was ordered that the suit be decreed “in terms of the deed of compromise, that the Plaintiff's right to the lands claimed be established and that the decree in the Sub-Judge's Court in No. 53 (that is, Keshab Lal's Suit) do stand final.” It is not quite clear what was meant by these last words but it is unnecessary for our present purpose to discuss the question. On 20th June 1904, the Plaintiff, whose title is founded on the lease by Keshab Lal, filed this suit to establish it.

The first point urged on this appeal is that the decree in favour of Keshab Lal was collusive. It was suggested with some show of reason that it was merely a device on the part of Keshab Lal and his brother-in-law Rasik Lal to save Biseswar's estate from the creditors. It has, however, been found that Keshab Lal's debt was a genuine debt and that the decree though passed by consent was not collusive. That finding we must accept.

It was next argued that Panchanan and Rakhal Raj being minor and not properly represented, the decree so far as they were concerned must be treated as a nullity, the more so as it was passed on a compromise, not properly sanctioned by the Court. With this we are unable to agree. The only persons who could avoid the decree were the minors Panchanan and Rakhal Raj. Panchanan did file a suit for that purpose with which we shall presently deal; but until the decree is so avoided, it must stand good against all the world as a final order of the Court. It is not open to third parties to plead that the decree was a nullity. The question of res judicata which was raised in one of the grounds of appeal does not really arise and we need not discuss it.

The most important and indeed the only point for our determination is the question of lis pendens. Can the Plaintiffs who took the lease of this two anna share in the fishery during the pendency of Panchanan's suit acquire any right in it to the prejudice of Panchanan?

The lower Courts have decided that the doctrine of lis pendens doss not apply on the ground that the Sub-Judge, in whose Court the suit was at the date of the lease, had no jurisdiction to try it. This is clearly erroneous. In the first place though sec. 15 of the C.P.C of 1882, might require the suit to be laid in the Munsif's Court, it does not follow that the Sub-Judge had no jurisdiction to try it. It has been held that sec. 15 refers to procedure only and does not affect the question of jurisdiction. But even if the Sub-Judge had no jurisdiction it does not follow that the case would not fall within the provision of sec. 52 of the Transfer of Property Act. The words “active prosecution” in that section must refer to prosecution by the Plaintiff. That a Plaintiff can actively prosecute a suit in a Court which from defect of jurisdiction is unable to entertain it is clear from the wording of sec. 14 of the Limitation Act, XV of 1877, in which the legislature has adopted that very phraseology.

Before, however, the doctrine of lis pendens can be applied it must be distinctly found that the suit or proceeding is a contentious one. Without going into an elaborate discussion as to what is and what is not a contentious suit, we may safely say chat a collusive suit or a suit where the decree was obtained by collusion or fraud, would not fall within that category. Now there is no express finding as to the nature of the suit by Panchanan either in its inception or its termination. There are circumstances connected with it which give rise to suspicion. In was a suit by Panchanan against his brother-in-law to set aside a decree and sale which were themselves the result of a compromise. Though Keshab Lal may have had a genuine claim against Biseswar's estate, it looks very much as if the earlier suit was the outcome of a family arrangement. The termination of Panchanan's suit is peculiar. Though ostensibly asserting his rights he pays the substantial sum of Rs. 2,000 for the decree. There are not sufficient materials before us to enable us to exercise the power given us by sec. 103 of the C.P.C, 1908, and determine the issue of fact. Notably the deed of compromise on which the decree in favour of Panchanan was based, and the petition to file it are not before the Court. We accordingly remand the case to the lower Appellate Court to take evidence upon and determine the issues whether the suit by Panchanan (No. 236 of 1902) was collusive, and whether the decree in that suit was obtained by collusion and in fraud of the rights of the Plaintiff in this suit. The lower Appellate Court may either record the evidence itself or send the case down to the Munsii's Court for that purpose.

The return with the findings of the lower Appellate Court to be made to this Court within two months of the receipt of this order by that Court.

[The lower Appellate Court having duly returned its findings, the Court passed its final judgment on the 27th July 1909.]

Babus Sarat Chandra Roy Chowdhry and Hari Bhusan Mukherjee for the Appellants.

Babus Kishori Lal Sirkar and Biraj Mohan Mojumdar for the Respondents.

The final Judgment of the Court was as follows:—

We remanded this case to the lower Appellate Court for a finding whether the suit of Panchanan (No. 236 of 1902) was collusive and whether the decree in that suit was obtained by collusion and in fraud of the rights of the Plaintiffs in this suit. The finding of the lower Appellate Court to both questions is in the negative. We must in second appeal accept that finding, and it makes no difference that finding has been arrived at by the lower Appellate Court on a remand from this Court. That does not, as the learned pleader for the Plaintiffs suggested, make it an appeal from an original order so far as that finding is concerned.

Accepting that finding it is obvious that the Plaintiff's suit cannot succeed as regards Panchanan's share, viz., one quarter of the two annas of the jalkar. The learned pleader for the Appellants raised the contention that the decree in Panchanan's suit affected the rights of all the four brothers; that the decree only could be looked at and that the effect of that suit upon the present suit must be in accordance with the decree. With this we cannot agree. The suit of Panchanan was expressly confined to his share in the estate. If by consent the decree went beyond the scope of that suit and purported to deal with the rights of the Defendants his brothers, that cannot affect the Plaintiffs in this suit. The transfer to them took place while the suit of Panchanan was pending and they must be taken to have accepted the lease on the understanding that suit might be successful, i.e, that Panchanan might be found to have a right to a fourth share in the property as against their transferor Keshab Lal. They could not reasonably be said to have the same expectation as regards the rights of the other brothers, which were not within the scope of that suit and could be dealt with in the decree only by consent of parties.

We accordingly allow this appeal in part and modify the decree of the lower Appellate Court. The Plaintiffs will be entitled to a decree only as regards three-fourths of the two annas of the jalkar leased to them. The Appellants must pay to the Respondents half their costs of this appeal. We allow only one hearing-fee.

Decree modified.