Janki Kuer v. Baldeo Choudhary — 1955 DIGILAW 55 (PAT)

Judgment Rai, J. 1. This appeal by the plaintiffs is directed against the judgment and decree of the Special Subordinate Judge, Ranchi, confirming those passed by the Munsif of the same place. 2. Some relevant facts preceding the institution of the present suit may shortly be stated as follows. Plot No. 720 situated within the town of Ranchi belonged to Balmakund Marwari, the present defendant No. 3. In the year 1928, one Alam Khan got a money decree against Balmakund Marwari in a small cause court suit from the Court of the learned Small Cause Court Judge at Calcutta. The small cause court decree was transferred or execution to Ranchi where the execution case was numbered as Execution. Case No. 567 of 1928. Subsequently, the decree-holder assigned his right, title and interest in the "decree to Bhagwat Dayal Sahu, grand father of Motilal Saha, the present defendant No. 2. The assignee of the decree was thereafter substituted in place of the original decree-holder in the execution proceeding. At the auction sale held on 8-8-1933, one-third share of plot No. 720 was sold and purchased by the assignee of the decree-holder. On 11-11-1933, the auction purchaser got delivery of possession of the one-third share of plot No. 720 purchased by him at the auction sale. In the year 1937, Baldeo Choudhary and Motilal Saha instituted Partition Suit No. 46 of 1937 for partitioning their one-third share in plot No. 720. This suit was originally filed against Balmakund Marwari who pleaded that he had transferred his right, title and interest in the plot to his daughters-in-law, Mt. Janki Kuer and Mt. Kamli Kuer, the present plaintiffs. Thereafter, the present plaintiffs were impleaded as party defendants to the partition suit. On 31-10-1938, the partition suit was decreed, On 18-8-1939, the appellate Court affirmed the decree passed in Partition Suit No. 46 of 1937. On 5-2-1946, the plaintiffs instituted the present suit for grant of the following reliefs: "(1) A declaration be made that the plaintiffs are fully entitled to the property described in Schedule A. (2) Costs and interest on costs to be decreed. (3) Any other relief or reliefs to be decreed if the plaintiffs are found entitled to." Under Schedule A, the plaintiffs mention one-third share of the municipal plot No. 720. (3) Any other relief or reliefs to be decreed if the plaintiffs are found entitled to." Under Schedule A, the plaintiffs mention one-third share of the municipal plot No. 720. 3 According to the plaintiffs, plot No. 720 constituted a raiyati holding which was not transferable under the Chota Nagpur Tenancy Act, and as such, the auction purchasers in Execution Case No. 567 of 1928 had acquired no interest which was binding on them. 4. The suit was contested by defendants 1 and 2 who pleaded inter alia that the present suit was barred under Sec. 42 Specific Belief Act, and that the present plaintiffs were not entitled to question the title of defendants 1 and 2, as that plea was barred by res judicata by virtue of the decision in Title Partition Suit No. 46 of 1937. On these and other pleas they asserted that the suit was liable to be dismissed. 5. The trial Court held that the Suit was barred by res judicata and was also hit by the provisions of Sec. 42, Specific, Belief Act, but as defendant 2 had admitted the title of the plaintiffs with respect to his half share out of one-third share of plot No. 720, the suit was decreed as against defendant 2 on admission, but it was dismissed against defendant 1 with costs. 6. The plaintiffs thereafter went in appeal, but the lower appellate Court also affirmed the judgment of the Court below on the question of res judicata and on the maintainability of the suit under Sec. 42, Specific Belief Act. The lower appellate . Court further held that the provisions of the Chota Nagpur Tenancy Act did not apply to the house standing on plot No. 720, In this view of the matter, the appeal was dismissed with costs as against defendant 1. 7. The plaintiffs thereafter came up in Second Appeal before this Court Learned Counsel for the appellants contended before us that the delivery of possession given to the auction purchaser on 11-11-1953, was merely a symbolical delivery of possession. He asserted that in spite of that delivery of possession his clients had succeeded in remaining in possession of the entire plot; hence, it was not necessary for them to pray for any other relief except a relief for declaration as has been done in the present suit. He asserted that in spite of that delivery of possession his clients had succeeded in remaining in possession of the entire plot; hence, it was not necessary for them to pray for any other relief except a relief for declaration as has been done in the present suit. In my opinion, the Court below have rightly held that the plaintiffs were not entitled to the declaration claimed by them. It may be that the plaintiffs, who owned two third share of the house standing on plot No. 720, had remained in actual physical possession of the entire house, but after the decree passed in Partition Suit No. 46 of 1937, it is not now open to| them to say that the present defendants 1 and 2 who were successful plaintiffs in the partition suit, were not in possession Of the one-third share even in the eye of law. In my view, the decree given in the partition suit does establish their possession, in the eye of law over the one-third share. It was, therefore, incumbent on the plaintiffs to have prayed for further relief in the shape of either confirmation of possession or recovery of possession. But, as they have deliberately omitted to do so, the relief for declaration only has been rightly refused by the Courts below. 8. Learned Counsel, for the plaintiffs appellants further contended that the claim of the plaintiffs) was not barred by res judicata. He. submitted that Section 47, Chota Nagpur Tenancy Act was a bar to transfer of any portion of a raiyati holding; and hence the auction purchaser did not acquire any title by virtue of the auction sale, held on 8-8-1933, He also urged that the plea of res judicata cannot prevail against the statute. In support of his contention be relied upon the decision in the case of -- Rup Nath V/s. Jagannath, A1B 1928 Pat 227 (A). In my opinion, the decision in that ease has no application to the facts and circumstances of the present case. In the case of Rup Nath Mandal mentioned above, a mortgage decree was passed m respect of four annas mokarrari interest in Chota Nagpur. When the mortgagee, decree holder took out execution and attempted to put to sale the mortgaged properties, the judgment debtor raised an objection that the properties sought to be sold were not transferable under Section 47, Chota Nagpur. When the mortgagee, decree holder took out execution and attempted to put to sale the mortgaged properties, the judgment debtor raised an objection that the properties sought to be sold were not transferable under Section 47, Chota Nagpur. Tenancy Act. The executing Court allowed the objection and held that the mortgaged property could not be sold and, in this view of the matter, dismissed the execution case. The decree holder thereafter went in appeal, but the lower appellate Court took the view that the executing Court could not go behind the decree passed in a mortgage action which had directed the sale of the mortgaged property. In this view of the matter the first appellate Court disallowed the objection raised by the judgment-debtor, who came up in Second Appeal before this Court. The learned Judges who decided that case held that the judgment debtor was competent to raise an objection regarding the non-transferability of the occupancy holding before the executing Court even though that objection had not been raised before the Court which passed the decree for sale. It is profitable at this place to see the relevant portion of Sec. 47, Chota Nagpur Tenancy Act, as it then stood. It runs as follows:. "No decree or order shall be passed by any Court for the sale of the right of a raiyat in his holding, nor shall any such right be sold in execution of any decree or order." From the above-quoted portion of Sec. 47, it is quite clear that an objection regarding the non-saleability of a rayati holding could be taken either before the Court which passed the decree or before the executing Court. The learned Judges were, therefore, perfectly justified in holding that the judgment debtor was entitled to raise an objection before the executing Court that Sec. 47, Chota Nagpur Tenancy Act, prohibited sale by auction of a a raiyati holding, though such an objection was not taken before the Court which had passed the decree. 9. In the present case, however, the judgment debtor did not raise any such objection during the execution proceedings and allowed the one third share of the house standing on plot No. 720 to be sold. Even if the argument of Mr. 9. In the present case, however, the judgment debtor did not raise any such objection during the execution proceedings and allowed the one third share of the house standing on plot No. 720 to be sold. Even if the argument of Mr. Mazumdar were to be accepted that the house standing on plot No. 720 was governed by the provisions of the Chota Nagpur Tenancy Act and that the auction sale was void, such a plea should have been taken by the present plaintiffs in Partition Suit No. 46 of 1937 to defeat the claim of the plaintiffs of that suit for partition of their one third share of the house. In my opinion, they having not raised such an objection in the partition suit are barred under the provisions of Sec.11 Civil P.C. from raising it in the present suit. 10. Mr. Mazumdar cited in this connection another decision of this Court in the case of --Uchit Lal V/s. Raghunandan Tewari, AIR 1934 Pat 666 (FB) (B), but that case also does not take. us- any further than the earlier decision of this Court in the case of AIR 1928 Pat 227 (A). Their Lordships of the Full Bench also held that even if no objection had beer, taken in the mortgage suit regarding the non-transferability of a raiyati holding lying in Santal Barganas, it could be taken before the executing Court when the property is about to be sold. 11. Mr. Mazumdar thereafter attempted to argue that Bhagwat Dayal Sahu was alone the auction purchaser at the auction sale held on 8-8-1933. It was, therefore, not permissible for defendant 1 to assert in this suit that he had also got one half share in the right purchased by Bhagwat Dayal Sahu at the auction sale. According to him, the entire right purchased at the auction sale had been inherited by defendant 2 alone who had admitted the title of the plaintiff. He urged that in this view of the matter, the Courts below should have decreed the entire suit In my opinion, there is no force in this contention also of Mr. Mazumdar. According to him, the entire right purchased at the auction sale had been inherited by defendant 2 alone who had admitted the title of the plaintiff. He urged that in this view of the matter, the Courts below should have decreed the entire suit In my opinion, there is no force in this contention also of Mr. Mazumdar. In face of the decree passed in Partition Suit No. 46 of 1937, it is no more open to the present plaintiffs to question the title of to the present plaintiffs to question the title of defendant 1 to the extent of one half of one third of plot No. 720. In my view, the Courts below have rightly dismissed the suit with respect to the share of defendant 1. 12. The result is that the appeal fails and is dismissed with costs. Ahmad, J. 13 I agree.