Research › Browse › Judgment

Patna High Court · body

1955 DIGILAW 147 (PAT)

Ramanand Singh v. Ram Sakal Raut

1955-12-12

RAJ KISHORE PRASAD

body1955
Judgment Raj Kishore Prasad, J. 1. This is an appeal by defendant J. against the concurrent decision of the courts below holding that his defence, to be stated hereafter, is barred under Order 21, Rule 103, of the Code of Civil Procedure. 2. The plaintiffs brought a suit for a declaration of title to and recovery of possession of the entire plot 2275 under khata 273. It is not necessary to give the facts in detail. The plaintiffs claimed title to the entire plot 2275 by virtue of an auction-purchase by their father, Mangdu Raut, in execution of a mortgage decree, in favour of Sheo Bhajan Singh against Sublaik Singh and others in 1934. The defence of the appellant was that only half of plot 2275 was mortgaged to Sheo Bhajan Singh, and, therefore, the plaintiffs acquired title only to one half of plot 2275. Their further defence was that SublaiK, the recorded tenant and the mortgagor, gave the other half of plot 2275 in ijara to Jhumak Pasi, which was redeemed by the defendant, as an heir of Subiaik, on 21-7-46. 3. In order to appreciate the findings of the Courts below and the case of the parties, it is necessary to state a few facts more. The landlord of khata 273 obtained a rent decree against Sublaik the recorded tenant, and in execution of that rent decree this khata, which includes plot 2275, was put up to sale. Sheobhajan Singh, the simple mortgagee, in order to prevent the sale deposited the entire decree amount under Sec.170(3) of the Bihar Tenancy Act and became statutory mortgagee of khata 273, and got possession under Sec.171 of the Bihar Tenancy Act. The rehandars of the holdings, namely Bhagwan Shau, Jhumak Pasi and Sahdeo Lohar brought a title suit against Sheobhajan Singh, the mortgagee, Sublaik Singh, the mortgagor, and three other persons, for recovery of possession. The suit was decreed, and in execution of that decree delivery of possession was taken out by the plaintiffs of that suit, namely, the ijaradars, mentioned aforesaid. At the time of the delivery of possession, Sheobhajan Singh, the mortgagee, and one of the judgment-debtors of the suit, Ramnand Singh, the present appellant, Jyoti Ahir, settlee of plot 2275 and another from Mangroo, plaintiffs father, and Mangroo himself, obstructed the decree-holders in taking delivery of possession. At the time of the delivery of possession, Sheobhajan Singh, the mortgagee, and one of the judgment-debtors of the suit, Ramnand Singh, the present appellant, Jyoti Ahir, settlee of plot 2275 and another from Mangroo, plaintiffs father, and Mangroo himself, obstructed the decree-holders in taking delivery of possession. The decree holders of that suit, including Jhumak Pasi, who is, defendant 2 in the present suit, out of which the appeal arises, and who was ijaradar of half of plot 2275, complained of the resistance and obstruction offered by the aforesaid persons to the executing court by an application under Order 21, Rule 97, of the Code of Civil Procedure (Ex. 4) on 29-6-37. This application was allowed in respect of two plots, with which we are not concerned, and dismissed with regard to plot 2775 on 10-11-37, the order of which is exhibit 8A. Prom this order it appears that the present appellant laid claim to plots 1523 and 233 only, and not at all to plot 2275. Plot 2275 was claimed by Jyoti Ahir, plaintiff 4, and Mangroo Ahir, father of the present plaintiffs, only. Jyoti Ahir and Mangroo Ahir were opposite parties 3 and 4 to the proceeding under Order 21, Rule 97 of the Code. The learned Munsif, who decided this proceeding, ordered as follows: "Thus it seems to me that the claim of opposite parties 3 and 4 is in good faith, and accordingly the obstruction in respect of plots 1192 and 2275 cannot be said to be without cause. This part of the application must, therefore, be dismissed. As for the other two plots, opposite party 2 Ramanand lays claim to them. Sublaik is the tenant in respect of the holding. Ramanand is his relation. His main plea is that the rehan deed in favour of the applicant is farzi...... I, therefore, hold that the resistance (wrongly mentioned in the certified copy as substance) in respect of plots 1523 and 233 was without just cause. The applicant will be put in possession of the plots. The application is accordingly allowed in part with costs". Admittedly no suit, as contemplated by [sic] of Order 21 of the Code, was brought by any of the two parties in respect of their claims disallowed. The applicant will be put in possession of the plots. The application is accordingly allowed in part with costs". Admittedly no suit, as contemplated by [sic] of Order 21 of the Code, was brought by any of the two parties in respect of their claims disallowed. On these facts, the plaintiffs objection was that the defence of the appellant asserting his rights, and resisting plaintiffs claim, to the other half of plot 2275 was barred under Order 21, Rule 103, of the Code. 4. The first court found that the plaintiffs had acquired title to plot 2275 only to the extent of one half by virtue of the sale and delivery of possession in the mortgage execution. As regards the plaintiffs claim to the remaining half in plot 2275, the learned Munsif held that the defendant appellant was precluded from raising the defence mentioned before under Order 21, Rule 103, of the Code. He, therefore, held that the plaintiffs were entitled to get a decree for recovery of possession of the entire plot 2275. On these findings he decreed the plaintiffs suit in toto. 5. Defendant 1 appealed against the aforesaid decree. He, however, conceded before the court of appeal below that the finding of the first court to the effect that only half of plot 2275 was purchased by the plaintiffs, was correct. He, therefore, confined his appeal only to the consideration of the question, whether the defendant had right and title to the remaining half of plot and if the plaintiffs suit should be dismissed with regard to the remaining half of plot 2275. The learned Subordinate Judge affirmed the decision of the first court and held that the first court had rightly held that the order passed under Order 21, Rule 99, of the Code, was conclusive against the defendant in view of Order 21, Rule 103, of the Code, and, therefore, the defendant was debarred from putting forward his defence. On these finding he dismissed the appeal of defendant 1. 6. In the present appeal by defendant 1, Mr. Krishna Ballabh Narain Singh appearing for the appellant, has argued that the view of law taken by the courts below is wrong, because there was no order against Ramanand Singh under Order 21, Rule 99, in respect of plot 2275, and, therefore, the courts below have misread exhibit 4 and exhibit 8a, referred to above. 7. Krishna Ballabh Narain Singh appearing for the appellant, has argued that the view of law taken by the courts below is wrong, because there was no order against Ramanand Singh under Order 21, Rule 99, in respect of plot 2275, and, therefore, the courts below have misread exhibit 4 and exhibit 8a, referred to above. 7. Under Article 11-A of the Indian Limitation Act the period of limitation for the unsuccessful claimant to establish the right which he claims to the present possession of the property comprised in the order is one year from the date of the order, and where the summary order contemplated by Order 21, Rule 103, is not overruled in a regular suit brought within a year, it becomes conclusive and binding on all persons, who are parties to it and also on their successors-in-title, and they are thereafter precluded from asserting their rights, even as defendants. The above proposition of law is well-established by several authorities, such as, Azizullah Khan V/s. Ghulam Hussein, 80 Ind Cas 994: (AIR 1924 Sind 97) (A), in which the cases of Nemagauda V/s. Paresha, ILR 22 Bom 640 (B) and Surnamovi Dasi v. Ashuthosh Goswami, ILR 27 Cal 714 (C) have been relied upon. 8. In view of this there can be no doubt that the defence of defendant 1 would be barred under Order 21, Rule 103, of the Code, if it be established that an order against him was passed in that proceeding under Order 21, Rule 99, in respect of plot 2275. I have very carefully examined exhibit 4, the application under Order 21, Rule 97, as also the order passed on that application, exhibit 8a.From the order passed under Order 21, Rule 99, of the Code, there can be no manner of doubt that as far as Ramanand Singh, the appellant, is concerned, he laid no claim to plot 2275, and as such it cannot be said that an order against him had been passed under Order 21, Rule 99, in respect of plot 2275, which made it obligatory on him to bring a suit within the period of limitation, as provided by Order 21, Rule 103, of the Code. Exihibit 4, the application, shows that the appellant made claim in a general way to all the plots involved in the proceeding including plot 2275, but the order, exhibit 8a, makes it clear that the appellant laid claim to plots other than plot 2275 and he made no claim whatever to plot 2275. We have to construe the order and determine its effect. In this view of the matter, the basis of the findings of the courts below completely disappears, and as such the courts below have completely misdirected themselves in not considering the defence of the appellant with regard to plot 2275 on, the wrong reading of exhibit 8a. In my opinion, therefore, the judgments of the courts below must be set aside, and the matter sent back to the court of appeal below for considering the defence of the appellant regarding the title of the plaintiffs to the remaining half of plot 2275. 9. Mr. Harinandan Singh, appearing for the plaintiffs respondents, had argued that even if it be held by this Court that the defence of the appellant was not barred under Order 21, Rule 103, of the Code, still there was an obstacle, in the way of the appellant, in accepting his defence. 10. The objection, according to him, is that the order under Order 21, Rule 103, of the Code was passed against Jhumak Pasi, who was ijaradar of half of plot 2275 from Sablaik. He admittedly did not bring any suit to establish his right as ijaradar in respect of the half share in plot 2275 within one year, as contemplated by Order 21, Rule 103, of the Code, and, therefore, his right as ijaradar to such property was extinguished under Sec.28 of the Limitation Act. The fact that the appellant redeemed Jhumak Pasi in 1946 was, therefore, of no consequence, and it cannot have the effect of reviving his right to half of plot 2275. 11. The court of appeal below, therefore, will consider the defence of the defendant regarding the plaintiffs" claim to the remaining half of plot 2275 along with the objection of the plaintiffs indicated above, and then come to a finding On the question, whether the plaintiffs had proved their title to the remaining half of plot 2275. 12. 11. The court of appeal below, therefore, will consider the defence of the defendant regarding the plaintiffs" claim to the remaining half of plot 2275 along with the objection of the plaintiffs indicated above, and then come to a finding On the question, whether the plaintiffs had proved their title to the remaining half of plot 2275. 12. In the result, the appeal is allowed, and the matter is sent to the lower appellate court for disposal in accordance with the law in the light of directions given above. Cost of this court will abide the result of the appeal before the court of appeal below.