Promotha Nath Mazumdar v. Nagendra Nath Mazumdar

The Judgment of the Court was as follows:—

Rankin, C.J:— In my opinion, this appeal must fail. There are three points that are taken in this appeal. The Defendant-Appellant is a purchaser of the land in suit in the year 1912 at an auction-sale held in pursuance of a money decree. The Plaintiff is a person whose mother got a decree in 1912 upon a mortgage of 1909 and in 1914 bought the said land at an auction-sale under the mortgage decree. The mortgage bond comprised several items of property. It was executed by one Ambica Kanta Majumdar for Rs. 500 and it comprised three lots of property specified in different schedules. The Plaintiff when he brought his suit claimed certain land describing it in a particular way and there can be no doubt, if one looks simply to the description in the plaint, that the Defendant is in possession of the land which the Plaintiff is claiming.

The first question which we have to consider is whether it is properly shown by the Plaintiff's title-deed that the land which he has become entitled to is the land of the Plaintiff or is some other land, may be, not identifiable by the evidence in the case. The Plaintiff's title-deed is, of course, his sale certificate and the Plaintiff obtained by that sale-certificate a title to the property sold to him such as the mortgagor had at the date of the mortgage of 1909. Now, the sale-certificate describes the property as Mahal Chak Malanchi bearing No. 403 in the Touzi of the Rajshahi Collectorate. It goes on to say that it is situated within police-station and Sub-Registry Lalpur within the Nator Sub-Division of the Rajshahi District. It further says that the share of the sadar jama is Rs. 3 per annum.

It is said on behalf of the Appellant that the land in question as claimed in the plaint is not known as Chak Malanchi. The land in question is part of the property comprised in No. 403 but it is said that what the Plaintiff has to make out in order to succeed is really this that the mortgagor's share in Mouza Harirampore within Pergana Malanchi has passed to him. The learned lower Appellate Court seeing that the certificate was of a sale in a mortgage decree has referred back to the mortgage-bond and referring back to the mortgage-bond, it finds that in the sale-certificate the description is copied verbatim from the first schedule which describes the property mortgaged. There can be no doubt, therefore, according to the lower Appellate Court, that the description in the mortgage-deed is evidence which shows what was meant by the document of title, namely, the sale-certificate. If there was any question of using the mortgage-deed in order to construe the sale-certificate and explain any ambiguity in the sale-certificate or anything of That sort, no doubt to have recourse to it for that purpose would be erroneous. But what we are concerned with is not the construction of the sale certificate. We are concerned to find whether we can identify the property described—it may be not very well, it may be inaccurate—by the language used in the sale-certificate. For that purpose, I have no doubt at all that extrinsic evidence is competent. In support of the Appellant's contention, the only case that has been cited to us by his learned Advocate is the case of Ramabhadra Naidu v. Kadirhjasami Naicker where the Privy Council has pointed out that certificates of sales are documents of title which ought not to be lightly regarded or loosely construed. But this was said in a case where the Privy Council reversed a decision which had cut down the language of a sale-certificate by reference to the mortgage-deed and in that way, had acted contrary to law. The finding of fact of the lower Appellate Court in the present case is that a reference to the mortgage-deed clearly shows that a certain share in Mouza Harirampur within Pergana Malanchi is the first of the mortgaged subjects. That being so, the lower Appellate Court was entitled to come to the conclusion that the Plaintiff had succeeded in identifying the property comprised in the sale-certificate with the property claimed in the plaint. Now, it is conceded that the Defendant is in possession of the property claimed in the plaint. That being so, we are not further concerned with the Defendant's title-deed except in so far as the Defendant might be able to say that his title-deed had priority over the Plaintiffs. Primâ facie, there is no question of that kind because the Defendant's predecessor purchased in 1912 in execution of a money decree and got only the right, title and interest of the judgment-debtor which he then had whereas the Plaintiff's predecessor purchased the right, title and interest which the mortgagor had in 1909. That being so, the first point seems to me to fail.

The second question is one as regards Lot No. 3. The case made as regards Lot No. 3 is that Lot No. 3 was a fictitious property which had no existence at all, never belonged to the mortgagor and was put in the mortgage-deed entirely collusively for the purpose of enabling registration to be made within the particular Sub-Registry of Mirpur in order that the registration might not operate to give publicity to the transaction. On that point, the lower Appellate Court found in favour of the Defendant. The evidence of the Defendant was given by producing a register and saying that no revenue-free estate of the kind mentioned in the third schedule appeared from that register and, therefore, there was no such revenue-free property as was included in Sch. III and the item was entirely fictitious. The lower Appellate Court found that this B register did not contain an estate the area of which was less than 5 bighas and, as the area in this case was not as much as 5 bighas, it entirely refused to find from this register that the property was fictitious. Further, it found that it was proved that certain items in Lot No. 3 did really and in truth lie within the jurisdiction of Mirpur Thana and Sub-Registry. In these circumstances the learned Judge said that it was difficult to hold that any fraud was practised on the Sub-Registrar. In my opinion, on the evidence which the Defendant has adduced in this case, there is no substantial ground at all for holding that Lot No. 3, was fictitious and that there was a collusive entry for the purpose of enabling registration to be effected in Mirpur Thana. That appears to me to be the inevitable result of the view taken by the lower Appellate Court.

The third point taken was a point which was not taken in the first Court or in the lower Appellate Court at all. It is said now that, if one looks to the facts as they existed on the date of the mortgage-deed, Lot No. 1 was, in fact, within the Sub-District of Natore and it is said that, as it was described in the mortgage as being in another Sub-District altogether, namely, Lalpur, although it was described as being within the Sub-Division of Natore, the description was not sufficient to enable the property to be identified. In particular, it is said that the description was misleading in that the Sub-Registrar would not send notice of this transaction to the proper place; he would send it to Lalpur instead of sending it to Natore and, in that way, it is said, on the authority of the decision of a Full Bench of this Court in the case of Baij Nath Tewari v. Sheo Sahay Bhagat (2) that the registration was bad and the transaction was invalid. As to this, it appears to me that it is too late now to put to us as a pure point of law any such contention. The question under sec. 22 of the Registration Act is a question whether the description given of a property is sufficient to identify that property. It may well be that, if this matter had been taken at the proper time and evidence had been led as to the point, it would have been possible for the Plaintiff to show that, although the Sub-Registry was misdescribed, the description of the property was sufficient for the purpose of identification. It has to be remembered, as it has been pointed out by the Privy Council in the case of Sah Mukhun Lull Panday v. Sah Koondan Lal that “it is scarcely reasonable to suppose that it was the intention of the Legislature that every registration of a deed should be null and void by reason of a non-compliance with the provisions of secs. 19, 21 or 36, or other similar provisions. It is rather to be inferred that the Legislature intended that such errors or defects should be classed under the general words ‘defect in procedure’ in sec. 88 of the Act, so that innocent and ignorant persons should not be deprived of their property through any error or inadvertence of a public officer on whom they would naturally place reliance.” I entirely decline to hold that, in any and every case, as a matter of law, where there is a mis-description or mis-statement of the Sub-Registry in which the property is situated, the description is coipso insufficient and is of such a character as to make the registration of the document invalid. It appears to me that the question whether the description is sufficient to identify the property, and I speak now of cases of mis-description as well as of cases of non-description or insufficient description, is to be regarded as a question, in the first instance, of fact. It does not appear to me to be right that, for the first time in the third Court, an objection of this character should be listened to when the Courts below have not had evidence taken in respect of it.

This brings me to observe that I entirely fail to understand the procedure of the learned Subordinate Judge in directing a de novo trial by the first Court. Having several difficult questions before him which had been determined by the trial Court in one way, it was the duty of the Subordinate Judge, if he was dissatisfied with the view taken by the first Court, to come to a conclusion on the evidence for himself after arriving at the necessary finding of facts and of law. I must strongly deprecate delivering a lecture on points of law to the trial Court and sending a case back for de novo trial to that Court when there is no reason whatever to think that either party had not an opportunity of producing all the evidence that it desired to produce in the first instance. That appears to me to amount merely to throwing the work of the Court on somebody else. It multiplies proceedings. I need not say that ordinarily, if an Appellate Court disagrees with the lower Court and is not satisfied with that Court's opinion, its duty is to come to a proper conclusion for itself. Prior to the recent amendment of the Civil Procedure Code, this Court in second appeal being unable at times to come to findings of fact was in the unfortunate position of having to order a remand after an endeavour to explain the law applicable to the case. That is not now the law even in this Court. The learned Subordinate Judge in the present case ought to have come to proper findings for himself instead of entailing on the parties unnecessary trouble and expenses of a de novo trial.

in my judgment, the present appeal should be dismissed and the cross-objection should be allowed, the result being that the Plaintiff's suit is decreed with costs in all the Courts. There will be an order that the Plaintiff will recover khas possession of the suit-land from the Defendant and mesne profits for three years prior to the suit and until delivery of possession. Such, mesne profits will be assessed by the trial Court. The Defendant will not be entitled to redeem the property.

Mukerji, J.:— I agree.

P.C