Ashutosh Goswami And Ors. v. Surnomoyi Dasi

1. This appeal arises out of a suit brought by the plaintiff respondents, to recover possession and mesne profits of certain rent-free lands. Their case is that, at a sale in execution of a decree against defendant No. 2, the former owner of those lands, the plaintiffs' father purchased the same for Rs. 3,850 on the 18th of February 1882, benami, in the name of defendant No. 3 (nothing for present purposes turns upon this); that the sale was confirmed on the 3rd of June following; that the plaintiffs' father having died shortly after, the plaintiffs obtained symbolical possession of those on the 15th of February 1883; that, subsequently, the defendant No. 2, and his wife the defendant No. 1 having entered into an agreement with the mother and guardian of the plaintiffs for the purchase of the lands, the plaintiffs relinquished possession in their favour, and that the defendants Nos. 1 and 2 not having paid the consideration money in full, within the time stipulated, the plaintiffs became entitled, under the terms of the agreement, to recover possession of the property.

2. The defendant No. 1, who alone contested the suit, says, on the other hand, that the plaintiffs never had possession of the property in dispute, that their suit is barred by limitation; that the answering defendant never entered into any agreement with the plaintiffs' mother for the purchase of the property, and that the land in dispute was purchased on the 6th of February 1882, at a sale for arrears of road cess by Umesh Chunder Chattopadhya, a pleader, from whom the answering defendant purchased the same out of her stridhan.

3. The first Court, whilst finding in favour of the auction purchase set up by the plaintiffs, held that their suit was barred by limitation, and, as prior to their purchase, the property had been purchased on the 6th February 1882, at a sale for arrears of road cess by Umesh Chunder Chattopadhya, who subsequently sold it to defendant No. 1--it also found that the agreement set up by the plaintiffs was not binding on defendant No. 1.

4. On appeal by the plaintiffs the Lower Appellate Court has reversed the decision of the first Court and given the plaintiffs a decree, holding that their suit was not barred by limitation, that the sale at which the vendor of defendant No. 1 purchased was ineffectual in transferring any property, as it was not held by a competent authority, and that Umesh Chunder Chattopadhya having preferred a claim to the property in dispute in the execution proceedings, which led to the sale at which the plaintiffs' father purchased, and such claim having been disallowed, and no suit being brought within one year to set aside the order disallowing the claim, the defendant No. 1 is concluded by the order under Section 283 of the Code of Civil Procedure.

5. Against that decree the defendant No. 1 has preferred this second appeal. The learned Advocate-General on her behalf contends that all the grounds for the decision of the Lower Appellate Court are wrong, while, on the other hand, the learned Counsel for the plaintiff-respondents urges, not only that those grounds are well founded, but that the Court of Appeal below ought to have held that, in the absence of any certificate under the Public Demands Recovery Act VII of 1880 (B.C.) being shown to have been filed and duly notified to the debtor, the sale to Umesh ought not to be, and cannot be regarded as a valid one, and further that the purchase by Umesh was really benami for the judgment-debtor, and could not prevail over any subsequent sale in execution of a decree against him.

6. We may at once point out that, if the latter fact were substantiated, viz., that the purchase by Umesh was benami for the judgment-debtor, the other questions raised would not arise. And, although this question, which is an important one, has been touched upon in the lower Court, no decision has been given upon it.

7. The points which, under these circumstances, now arise for determination are, first, whether the suit is barred by limitation; second, what is the effect of the order of the 9th of February 1882, disallowing the claim of Umesh; third, was the sale, at which Umesh Chunder Chattopadhya purchased, a valid sale, and fourth, if so, whether it is open to the respondents to raise the question of Umesh Chunder Chattopadhya's purchase being benami for the judgment-debtor, and, if it is so open to them, whether it was in fact a benami transaction.

8. Upon the first point it was argued by the learned Advocate-General for the appellant, that as the possession obtained by the plaintiffs in February 1883 was not actual but only symbolical possession, it could not affect the defendant No. 1, who was no party to the execution proceedings, and so save the suit from the bar of limitation; and in support of this argument the case of Juggobundhu Mitter v. Purmanund Gossami (1889) I.L.R., 16 Cal., 530, was cited. If the symbolical possession obtained by the plaintiffs had not been followed by actual possession, this argument would no doubt have been well founded but the learned Judge in the Lower Appellate Court has found that the plaintiff's were in possession by placing two durwans in charge of the garden. He says: "I think the evidence of the respectable pleader, Babu Bhagwan Chundra Gossain, should be believed, when he says that the plaintiffs had two durwans in charge till October 1883. No more than this would naturally be done in the way of actual possession, when the land was occupied by tenants, and when the plaintiffs soon agreed to sell their rights." And he adds: "There is nothing to prove that Umesh had more than a formal delivery of possession without right, and he never did any act of possession." The learned Judge refers to other passages in the evidence as showing that the plaintiffs were in possession up to October 1883, and his finding, which is binding upon us on second appeal, must be taken as one to that effect. He sums up by finding there was no adverse possession until 1894. The suit was brought within 12 years from that date, and so it is not out of time.

9. Upon the second question it was contended for the defendant-appellant that the order of the 9th of February 1882, purporting to reject the claim of Umesh Chunder Chattopadhya, could not affect the appellant-

10. First, because the appellant is not the plaintiff in any suit to establish her right to the property in dispute.

11. Secondly, because the order was made without any "investigation" into the claim.

12. Thirdly, because the application of Umesh was not a claim preferred under Section 278 of the Code of Civil Procedure, and Section 283 of the Code was consequently inapplicable to the case; and lastly, because the appellant was claiming under a title acquired by his vendor Umesh subsequent to the order of the 9th February 1882.

13. In support of the first ground the case of Gend Lall Tewari v. Deno Nath Ram Tewari (1885) I.L.R., 11 Cal., 673, is relied upon. But that case, apart from other grounds upon which it may be distinguished from this case, was decided under the old law, Section 246 of Act VIII of 1859, the language of which was different from that of Section 283 of the present Code. Section 246 of Act VIII of 1859 simply said: "The order which may be passed by the Court under this section shall not be subject to appeal, but the party against whom the order may be given shall be at liberty to bring a suit to establish his right at any time within one year from the date of the order" while section 283 of the present code enacts that the party against whom an order under Section 280, 281 or 282 is passed may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive" and by Article 11 of the second schedule of the Limitation Act such suit must be brought within one year. The language of the two sections is thus substantially different. If then there was, in this case, an order under section 281 of the code rejecting the claim of Umesh, as we think there was, and as no suit was brought within one year to establish the right to the property in dispute which Umesh claimed, such order has by Section 283 become conclusive on the question of Umesh's right as between defendant No. 1, who claims title through Umesh, and the plaintiffs, who derive their title from the auction-purchaser at the execution sale, which followed the rejection of the claim of Umesh; and there is nothing in Section 283 to show that the conclusive effect referred to in it attaches to the order only when the party against whom it is made is plaintiff in the suit, in which it is set up as a bar. This view is in accordance with that taken by the Bombay High Court in Nemagauda v. Paresha (1897) I.L.R., 22 Bom., 640.

14. In support of the second reason mentioned above, the case of Kallar Sing v. Toril Mahton (1895) 1 C.W.N., 24, is relied upon as showing that where a claim is rejected without any investigation, Section 283 is inapplicable to it. That is undoubtedly so. But the order in the present case was made so far as one can judge from the materials before us after such investigation as the case admitted of, the extent of the investigation was, perhaps, not great, but then the facts of the case were apparently few and practically undisputed. That, as pointed out by the Privy Council in Sardhari Lal v. Ambika Pershad (1888) I.L.R., 15 Cal., 521, is sufficient to make the order one under section 281, the code not prescribing the extent to which the investigation should go.

15. In support of the third ground it was urged that the Court must look to the substance of the application and of the order, and not merely to their form and language. After carefully considering the petition and the order made upon it on the 9th February 1882, it is reasonably clear that in form as well as in substance the petition was one under s.278, and the order one under section 281 of the code. Rightly or wrongly, the Court held that the alleged title of the then applicant created after attachment by numerous decree-holders could not prevail as against the latter, and relied upon the fact that the sale to the then applicant had not been confirmed (" is not yet pukkha "), and that he had not obtained possession of the property in question, and it further held that the sale was bad under section 285 of the code, and it accordingly rejected the claim. This may have been right or it may have been wrong, but as the then applicant did not choose to challenge the decision by regular suit within the year, the decision must be taken to be conclusive.

16. As to the last reason, it is enough to say that though the sale at which Umesh purchased was confirmed after the order of the 9th February 1882, the confirmation of the sale did not create any new right, but only perfected the inchoate right acquired at the sale, and that the Court rejected the claim not merely because the sale at which the claimant made his purchase had not been confirmed, but also because in the opinion of the Court it was a bad sale.

17. The effect then of the order of the 9th of February 1882 must, as we have already pointed out under section 283 of the code, be held to be conclusive as between the parties to this suit against the contention of defendant No. 1 that her vendor Umesh had a title to the property in dispute, which should prevail against that of the plaintiffs' under their father's purchase at the execution sale which followed the rejection of the claim of Umesh.

18. We have dealt, at perhaps greater length than was absolutely necessary, with the various contentions which were laid before us, and we have done so by reason of the minuteness with which it was deemed necessary to present them to the Court; but, in our opinion, the case is a reasonably clear one, having regard to the provisions of the Code to which we have had occasion to refer.

19. In this view it becomes unnecessary to consider the. third and fourth questions stated above. If it had been necessary, we should have held, upon the third question, that the ground upon which the Lower Appellate Court's judgment is based has been met by the production of the Civil List which shows that the Deputy Collector who held the sale was a duly authorized officer, but at the same time we should, for reasons into which it is unnecessary to enter, have thought it right to remand the case to the Lower Appellate Court to determine whether there had been a certificate duly filed and notified under Act VII of 1880 (B.C.), and upon the fourth question it might have been necessary to direct the Court below to determine whether the purchase by Umesh was not benami for defendant No. 2. But as we have observed above, it is unnecessary to say anything more on these two points.

20. The result then is that the appeal fails, and must be dismissed with costs.