Ram Kumar Moskara v. Gopi Krishna Kanodia — 1948 DIGILAW 132 (CAL)

JUDGMENT 1. Rameswar Maskara and three others borrowed money from the Plaintiff's father Badridas in the year 1925. To secure re-payment of the money the said persons executed a mortgage on the 28th April, 1925, in favour of the said Badridas. Badridas having died his son Gopikrishna Kanadia who is the Respondent before us, instituted a suit to enforce the mortgage on the 19th April, 1939, being mortgage Suit No. 7 of that year of the Court of the Subordinate Judge of Birbhum. The first 15 Defendants to that suit were some of the mortgagors who had executed the mortgage and the others were their legal representatives of the other mortgagors. The 16th Defendant to that suit was Ram Kumar Maskara, the Defendant Appellant before us. Ram Kumar was made Defendant No. 16 on the allegation that by reason of his purchase of the properties included in the mortgage instrument he was interested in the equity of redemption. It appears that the landlords had instituted two suits for rent in respect of the properties which were included in the mortgage, against the mortgagors and recovered two decrees. In execution of those two decrees in Rent Execution Cases 1351 and 1352 of 1932 the said Ram Kumar purchased the said holdings. Those two rent suits were instituted in the Court of the First Munsif at Rampurhat. Ram Kumar appeared in the mortgage suit and the plea that he took in the suit was that he was an unnecessary party on the ground that as purchaser at the rent sales his title was paramount to the title of the mortgagee. He prayed that he may be dismissed from the said mortgage suit. Before the mortgage suit was heard he made an application under sec. 167 of the Bengal Tenancy Act before the Second Munsif at Rampurhat for the issue of a notice on the mortgagee in order that the mortgage may be annulled. That application was made on the 4th December, 1939. The Munsif, 2nd Court. Rampurhat, issued the said notice upon the mortgagee, namely, the Plaintiff in the mortgage suit on the 5th December, 1939, and the said notice was served on the mortgagee on the 13th December, 1939. The judgment in the mortgage suit was delivered on the 23rd January. 1940. That application was made on the 4th December, 1939. The Munsif, 2nd Court. Rampurhat, issued the said notice upon the mortgagee, namely, the Plaintiff in the mortgage suit on the 5th December, 1939, and the said notice was served on the mortgagee on the 13th December, 1939. The judgment in the mortgage suit was delivered on the 23rd January. 1940. The learned Subordinate Judge held that Defendant No. 16 in that suit, namely, Ram Kumar was not a necessary or a proper party in the mortgage suit, inasmuch as he had set up a title paramount. The learned lawyers appearing for the mortgagee conceded that as the said Defendant had pleaded title paramount he was entitled to walk out of the suit. The ordering portion, however, of the judgment was for the dismissal of the suit as against Ram Kumar but it is quite clear, having regard to the discussions and the findings in the judgment, that Ram Kumar was paid his cost which was a small amount and was dismissed from the suit. A preliminary decree for foreclosure was passed against the other Defendants to the mortgage suit. That decree for foreclosure was made final on the 21st August, 1940. After the final foreclosure decree the Plaintiff Gopikrishna Kanadia went to take possession but he was unsuccessful in his attempt. Accordingly he filed the suit in which this appeal arises on the 15th August, 1941, in the Court of the Subordinate Judge of Birbhum. 2. In the plaint he recited the mortgage that had been executed in favour of his father on the 28th April, 1925. He gave a history of the mortgage suit and the circumstances under which the Appellant before us, namely, Ram Kumar Maskara was dismissed from the said mortgage suit. He further stated that the rent decrees, the execution that followed and the purchase by Ram Kumar at those execution proceedings were farzi, that is to say, collusive from the beginning to the end and, therefore, Ram Kumar had not acquired title by his purchase at the said execution sales, the title being in spite of those sales where it was before, namely, in the mortgagors. He further stated that at any rate the decrees passed in those suits for recovery of rent had the effect of money decrees and not rent decrees having the effect as given by the provisions of the Bengal Tenancy Act. There were three prayers in the plaint. The first prayer was for a declaration that the purchase of Ram Kumar in the said Execution Cases 1351 and 1352 of 1932 were fraudulent, sham and colourable, that the said person had not acquired any title thereunder and that the said sales had not affected the rights of the Plaintiffs and were not binding on him. The second prayer was as follows: That the plaintiff's title as alleged in the plaint to the properties in the suit be declared and that the plaintiff be put in possession of the properties in suit and the defendants be ousted from the same. The third prayer ran thus: That in case the court holds that the defendant is entitled to his purchase money, decree for possession in favour of the plaintiff be passed subject to the equities, if any, and on such terms as the court may deem fit and proper. 3. Ram Kumar Maskara was made Defendant No. 1 in the suit in his personal capacity as also as karta of a joint Mitakshara family. The other Defendants were pro forma Defendants. They were the representatives of the persons who had executed the mortgage of the year, 1925. Defendant No. 1, Ram Kumar alone appeared and filed a written statement. In his written statement he pleaded that in the mortgage Suit No. 7 of 1939, he was impleaded in his personal capacity and not as a manager or karta of a joint Hindu family governed by the Mitakshara Law; that he could not be sued as karta in the present suit, as there was no case made in the plaint against the other co-parceners of his family. In paragraph two of the written statement he stated that when the said mortgage suit was brought his father was alive and was the manager and karta of the joint family. In other parts of the written statement he pleaded that the questions as to whether the rent suits, the execution sales and his purchase at those sales were farzi or not were no longer open for discussion, and in fact they were not farzi transactions. In other parts of the written statement he pleaded that the questions as to whether the rent suits, the execution sales and his purchase at those sales were farzi or not were no longer open for discussion, and in fact they were not farzi transactions. He further pleaded that the decree passed in those suits for recovery of rent were in fact rent decrees and moreover the question as to whether the decrees passed in those suits had the effect of rent decrees or money decrees were not at all open for adjudication in this suit. In paragraph 24 of the written statement which is the most important paragraph for the purposes of determining the substantial points raised in the appeal, he stated that as within a year of his coming to know of the Plaintiff's mortgage he started proceedings under sec. 167 of the Bengal Tenancy Act and while the mortgage Suit No. 7 of 1939 was pending, the mortgage incumbrance was duly annulled by service upon the mortgagee of the notice issued by the Court in terms of sec. 167 of the Bengal Tenancy Act. On this state of the pleadings, the learned Subordinate Judge framed seven issues. The last issue is the general issue, namely what relief, if any, was the Plaintiff entitled to. Issue No. 6 related to the question as to whether the buildings and structures on the land had passed to Ram Kumar by reason of his purchase of the holdings in Kent Execution Cases 1351 and 1352 of 1932. That issue is not material in the view that we are taking of another important point which has been argued at length before us. The first issue is: Has the plaintiff any cause of action for this suit against defendant No. 1 as karta of the joint Hindu family to which she said defendant belongs?. That issue was answered by the learned Subordinate Judge against the Plaintiff and is the subject-matter of the memorandum of cross-objections which has been filed by the Plaintiff. Issue No. 2 was formulated as follows: Was defendant no. 1 the auction-purchaser at the sales held in rent Execution Cases Nos. 1351 and 1352 of 1932 of the First Court of the Munsif at Rampurhat, the benamdar of the mortgagors in the matter of the aforesaid auction purchases? 4. Issue No. 2 was formulated as follows: Was defendant no. 1 the auction-purchaser at the sales held in rent Execution Cases Nos. 1351 and 1352 of 1932 of the First Court of the Munsif at Rampurhat, the benamdar of the mortgagors in the matter of the aforesaid auction purchases? 4. The learned Subordinate Judge went into the merits of this controversy and came to the conclusion that there was no tangible evidence on which he could find that the said Defendant was a benamdar of the mortgagors. The third issue was framed in the following manner:-- Is the question whether Defendant No. 1 was the auction purchaser at money sales barred as res judicata by reason of the decision in mortgage Suit No. 7 of 1939 of the court of the Subordinate Judge of Birbhum? 5. The fourth issue was as follows: Are the sales held in Bent Execution Cases Nos 1351 and 1352 of 1932 money sales under the Code of Civil Procedure? 6. The learned Subordinate Judge held that in view of the proceedings in the mortgage suit the Plaintiff was not entitled to have those questions agitated in this suit. The decision of the learned Subordinate Judge on these two issues is also the subject-matter of the memorandum of cross-objections filed by the Plaintiff. In the view that we are taking it is unnecessary to consider whether the learned Subordinate Judge's decision on these two issues is right or not. 7. The fifth issue runs thus:-- Is the plaintiff's interest a protected interest ? If not, was there any valid annulment of the plaintiff's incumbrance? 8. Why the first part of that issue was framed it is difficult to follow. The discussion of first part of this issue shows that some of the provisions of sec. 37 of the Bengal Land Revenue Sales Act were sought to be introduced by way of analogy. The learned Judge, however, could not agree with the Plaintiff's contention on that part of the Issue No. 5 and we think rightly. The second part of the issue, however, was very material to the case and is a matter for consideration by us. There cannot be any doubt that the mortgage of the year 1925 was an incumbrance on the holding. The second part of the issue, however, was very material to the case and is a matter for consideration by us. There cannot be any doubt that the mortgage of the year 1925 was an incumbrance on the holding. The question which was discussed before the learned Subordinate Judge and also before us is whether that incumbrance was annulled by Defendant No. 1. The finding is that Defendant No. 1 was the real purchaser at the sales held in Rent Execution Cases Nos. 1351 and 1352. We would assume that those rent suits were not collusive suits and the decrees passed thereunder were rent decrees and were not simple money decrees. We would further assume that by his purchase at those execution cases Defendant No. 1 acquired title to those two holdings with the right to annul incumbrances. The question, therefore, narrows down to this, namely, did he effectively exercise that right, namely, the right to annul the incumbrance which was the mortgage of the year 1925. 9. We have already stated that while the mortgage suit was pending he made an application to the Second Court of the Munsif at Rampurhat for the issue of a notice under sec. 167 of the Bengal Tenancy Act. That notice was issued by the said Court and it was served upon the Plaintiff on the 13th December, 1939. The application, however, was not made to the First Court of the Munsif at Rampurhat which had passed the decrees in those rent suits. It was made to the Second Court of that place and the notice was issued not by the First Court of the Munsif at Rampurhat but by the Second Court. Sec. 167, however, required the notice of annulment to be issued by the Court which had passed the rent decrees. If the Munsif, Second Court, in law had no jurisdiction to issue the same the said notice would be ineffective. Admittedly, it was not issued by the Court which had passed the rent decrees but by another Court. That came about in the following way: At the time when those two lent suits were instituted and the decrees were passed the First Court of the Munsif at Rampurhat had by reason of the assignment of business made by the District Judge of Birbhoom under sec. That came about in the following way: At the time when those two lent suits were instituted and the decrees were passed the First Court of the Munsif at Rampurhat had by reason of the assignment of business made by the District Judge of Birbhoom under sec. 13 (2) of the Bengal Assam and Agra Civil Courts Act, jurisdiction over the thanas in which the holdings were situated. At the time when Defendant No. 1 made the application under sec. 167 by an asignment of business made by the said District Judge under sec. 13 (2) of the said Civil Courts Act the thanas within which the holdings in question were situated were assigned to the jurisdiction of the Second Court of the Munsif. Sec. 167, however, expressly says that the application for issue of a notice of annulment must be made to the Court which had passed the decree. Admittedly the First Court of the Munsif at Rampurhat did not issue the notice and prima facie the notice would be a bad notice having been issued by a Court which had no authority to issue the same. The Defendant No. 1 can, in our judgment, avoid this prima facie difficulty in this way only if he could bring the case under sec. 150 of the Code of Civil Procedure. We are not impressed by the argument of the learned Advocate for the Appellant that secs. 37 and 38 of the CPC help his client. There the words "Court" which passed the decree had been defined for a limited purpose, namely, for the purpose of execution. A notice under sec. 167 has nothing to do with the execution of a rent decree, for the stage of an application under sec. 167 comes after the sale in execution of the decree had taken place and confirmed. The Appellant can only succeed as we have already said in avoiding the prima facie objection to the validity of the notice only if he can bring his case under sec. 150 of the Civil Procedure Code. There are in our opinion two difficulties in his way. The first difficulty is that in order that sec. 150 may be invoked there must be transfer of business of one Court to an-other Court. 150 of the Civil Procedure Code. There are in our opinion two difficulties in his way. The first difficulty is that in order that sec. 150 may be invoked there must be transfer of business of one Court to an-other Court. In the case before us the First Court of the Munsif at Rampurhat was in existence at the time when Defendant No. 1 made his application under sec. 167 of the Bengal Tenancy Act, only the local limits of its jurisdiction had been curtailed. It has been held in a series of cases one of which is the case of Dagunath Saha Roy v. Biswambar Saha Roy 61 C. L. J. 543 (1985) that "an assignment of business under sec. 13 (2) of Act XII of 1887 (Civil Courts Act) is not the same thing as a transfer of business under sec. 150 of the Code." That is the first difficulty in the way of the Appellant before us. The second difficulty is that if a case comes under sec. 150 of the Code, the Court to which the "business is transferred " can exercise the same powers and thus the same duties as have been respectively conferred and imposed by or under the CPC upon the Court from which the business was so transferred. The power to issue a notice for annulment of an incumbrance is not a power conferred by the Code of the Civil Procedure but by another enactment, namely, the Bengal Tenancy Act. We, therefore, hold in concurrence with the learned Subordinate Judge that the notice issued under sec. 167 of the Bengal Tenancy Act by the Second Court of the Munsif of Rampurhat was an ineffective notice. 10. Proceeding on the basis that the said notice was ineffective and did not in law annul the incumbrance, namely, the mortgage of the year 1925, Mr. Ghose appearing on behalf of the Appellant urges that the decree for possession which has been made by the learned Subordinate Judge cannot stand. He says that the foreclosure decree which was passed in the mortgage suit was an ineffective decree, for the equity of redemption was entirely unrepresented in that suit. Ghose appearing on behalf of the Appellant urges that the decree for possession which has been made by the learned Subordinate Judge cannot stand. He says that the foreclosure decree which was passed in the mortgage suit was an ineffective decree, for the equity of redemption was entirely unrepresented in that suit. His contention is that although in form the decree is a decree for foreclosure its legal effect is to leave the equity of redemption outstanding, that is to say, the Plaintiff in the mortgage suit inspite of the said foreclosure decree has now the rights of a mortgagee and mortgagee only as admittedly the mortgage was not a usufructuary mortgage or a mortgage with possession and the Plaintiff cannot on the basis of his mortgagee-title maintain a suit for recovery of possession. His contention is that a person who is kept out of possession can only maintain a suit for recovery of possession if he has the right to present possession. An owner has that right. A lessee has that right. A usufructuary mortgagee or a mortgagee with possession has the right to present possession but a simple mortgagee or a mortgagee under an English mortgage, which is the case before us, has no right to present possession. For this purpose, he relies upon the decision of the judicial Committee in the case of Bijai Saran Sahi v. Kudra Bageshwari Prasad Bahadur Sahi (1929) 51 C. L. J. 70. That case fully supports his contention. But the question before us is: can Defendant No. 1 take up the position that the Plaintiff has the rights of a mortgagee only? That position can only be taken up, as has been taken before us by the learned Advocate for the Appellant, that the foreclosure decree was an ineffective decree because the entire equity of redemption, which on the findings arrived at by the learned Subordinate Judge in this case, was in his client by reason of his purchase at those execution sales, was not represented in the mortgage suit. We think that he cannot take up the position that the mortgage suit was defectively constituted on the sole ground that the mortgage decree was not passed against him in that suit. 11. We think that he cannot take up the position that the mortgage suit was defectively constituted on the sole ground that the mortgage decree was not passed against him in that suit. 11. Inasmuch as the Defendant No. 1 has not succeeded in annulling the mortgage the position is that notwithstanding his purchase in those two rent execution cases the mortgage was effective as against him. In the mortgage suit he was impleaded on the ground that by reason of his said purchase he represented the equity of redemption. He took up the position that the mortgage had been wiped out altogether, because he was the purchaser at the rent sales and had annulled the said mortgage. In the written statement filed in the mortgage suit he pleaded title paramount and insisted that he should be dismissed from the suit. Having regard to the fact that the question of title paramount cannot be gone into in a mortgage suit the mortgagee's pleader conceded the position taken up by Defendant Ram Kumar Maskara. The Court in its judgment passed in the mortgage suit slated that as the said Defendant had pleaded title paramount he had the right to walk out of the suit and allowed him to walk out of the suit. Having taken up in that mortgage suit the position that he had not the equity of redemption in him be cannot in the present suit take up an inconsistent position, namely, that he had the equity of redemption at the time when the mortgage suit was instituted and so was a necessary party to that mortgage suit. The principle is well-established that a litigant cannot play fast and loose, blow hot and cold, approbate or reprobate either in the course of the proceedings in the same suit or in a different suit between the parties to the detriment of his opponent. This principle has been formulated in the clearest terms by Mr. Justice Mookerjee in the case of Dwijendra Narayan Ray v. Jogesh Chandra De 88 C. L. J. 40 (1923). This principle has been formulated though in a different language in the later case before the Judicial Committee in Maharaja of Vizianagram v. Secretary of State for India in Council L. R. 53 I. A. 64 at 70 : s.c. 13 C. L. J. 378. This principle has been formulated though in a different language in the later case before the Judicial Committee in Maharaja of Vizianagram v. Secretary of State for India in Council L. R. 53 I. A. 64 at 70 : s.c. 13 C. L. J. 378. By reason of that principle we hold that the Defendant No. 1 cannot in this suit take up the position that the foreclosure decree passed in the mortgage suit was an ineffective decree by reason of the fact that that decree was not passed against him, who at that time as is now stated, represented the whole of the equity of redemption by reason of his purchases of the mortgaged properties in the execution cases of the year 1932. Further the case which is now sought to be made on the argument of the learned Advocate for the Appellant was not made in the written statement filed by his client. In paragraph 24 of the written statement he took up the definite position that the mortgage of the year 1925 was not in existence at the time when the foreclosure decree in that mortgage suit was passed. An issue was framed on that defence and that defence only. It is a fundamental principle that a party cannot make a new case, much less a new case which is inconsistent with the case as made in his pleading. The case which is now made before us is that the mortgage was alive at that time and could be the subject-matter of a suit for its enforcement but the decree passed in the mortgage suit was ineffective for by reason of defect of party (the absence of the Defendant before us) the mortgagee's rights remained where they were as before the said forclosure decree. That in our opinion is a case which is inconsistent with the case as made in paragraph 24 of the written statement and cannot be allowed to be raised now. That principle is well-established. That in our opinion is a case which is inconsistent with the case as made in paragraph 24 of the written statement and cannot be allowed to be raised now. That principle is well-established. It has, however, been put in so terse a form by Lord Blanesburgh in the case of Pancham v. Anser Husain L. R. 53 I. A. 187 at 195 : as a. 31 C. W. N. 324 (1927) that we are tempted to quote the passage, in the course of his judgment he observed thus: "No other issue was or is, on the pleadings, open to the Plaintiffs, and their conduct in this matter is not such as to entitle them to claim any more than strict treatment. On their own chosen issue they fought; to that issue they directed evidence which was not believed: on it, therefore, they failed. And by that failure they must abide." No doubt these observations were made in a case where the Plaintiff attempted to depart from his pleadings but in our judgment the same observations would equally apply to the case of a Defendant and more specially to the Defendant No. 1 before us. In view of the attitude he took in the mortgage suit, we can say in the words of Lord Blanesburgh that he is not entitled "to claim any more than strict treatment." We accordingly hold that Defendant No. 1 cannot be allowed to say that the foreclosure decree passed in the mortgage suit was an ineffective decree on the ground he urges before us. 12. We will now have to deal with the cross-objections. Mr. Chakravartti appearing for the Respondent did not press his cross-objection, in relation to the conclusions of the learned Subordinate Judge on Issues Nos. 3 and 4. He, however, attacked the learned Subordinate Judge's conclusion on Issue No. 1. In our opinion it is not necessary to go into that question in view of what Defendant No. I has stated in paragraph 2 of his written statement. He says in that paragraph that at the time of the mortgage suit, which was instituted in the year 1939 he was not the karta. His father was alive at that time and his father was karta or manager of the joint family. 13. He says in that paragraph that at the time of the mortgage suit, which was instituted in the year 1939 he was not the karta. His father was alive at that time and his father was karta or manager of the joint family. 13. A fortiori his father, and not he, was the karta in 1932 when he made his purchase at the sales held in Execution Cases 1351 and 1352 of that year. On this state of pleadings either he was himself the purchaser, the joint family having nothing to do with his purchase or his position was that of a benamdar of the members of the joint family of which he was not at that moment the karta. How far these facts would be effective as against other members of the joint family of Defendant No. 1, it they choose to resist the Plaintiff further is a question on which we need not express our opinion. The result is that this appeal is dismissed with costs to the Plaintiff Respondent. In view of the observations which we have last made, the cross-objection is dismissed but without costs.