UPENDRANATH CHATTERJI Vs. PRAMATHANATH MAJUMDAR

JUDGEMENT

(1.) This is an appeal by the Plaintiff against a judgment and decree of Mr. N.C. Chakrabarti, Additional District Judge, Howrah, dismissing the Plaintiff's suit for a declaration that the Plaintiff's interest was, unaffected by a sale held at the instance of the Howrah Municipality against one Batakrishna Ray Chaudhuri.

(2.) The Plaintiff's case is that the disputed holding belonged to one Rajkishore Ray Chaudhuri. On Rajkishore's death it devolved on his two sons, Ramchandra and Girish. Ramchandra's eight annas share was purchased by the Plaintiff's father in 19166 in execution of a mortgage decree. Girish's eight annas share devolved ultimately on Batakrishna as regards four annas share, and on Prabhabati as regards the remaining four annas. It appears that, in the municipal assessment books, the name of Batakrishna was recorded as the owner and one Behari Maiti was recorded as the occupier of the disputed premises. In 1934, Batakrishna sold his undivided four annas share to the Plaintiff's father. In 1941, Prabhabati sold her undivided four annas share to one Nilratan Chaudhuri. In 1943, Nilratan Chaudhuri started a partition suit-against his co-sharers. The partition suit was decreed and the disputed property was allotted solely to the Plaintiff. On June 2, 1941, the Howrah Municipality instituted a suit against Batakrishna Ray Chaudhuri alone, claiming rates and taxes for the period 1933-34 to 1940-41. In the suit, the Plaintiff, Howrah Municipality, prayed for a charge decree under Section 205, Calcutta Municipal Act, which had been extended by notification to Howrah. The suit ended in an ex parts decree. In execution of the said decree, the disputed property was brought to sale and purchased by Defendant No. 1. Thereafter, Defendant No. 1 took symbolical possession, The Plaintiff filed the present suit on July 30, 1946, for a declaration that his interest in the disputed property was unaffected by the sale at which the Defendant No. 1 purchased.

(3.) The defence to the suit was that the suit by the Municipality was one for a declaration of charge and that, as it was instituted against the recorded owner, the property itself passed to the purchaser, Defendant No. 1.