(1.) This is an appeal by the plaintiff from the judgment and decree of the learned Subordinate Judge, 3rd Court, Howrah in a suit for a declaration of the plinatiff 's title to the municipal Holding No. 14A, Stalkart Lane within Howrah Municipality after setting aside an order under Order 21 rule 100 of the Code of Civil Procedure passed in Misc. Judicial Case No. 18 of 1957 and permanent injunction.
(2.) The facts which are no longer in dispute may be stated as follows. One Pannalal Kundu died intestate before 1946 leaving a large estate including the disputed holding NO. 14A, Stalkart Lane. He was survived by his mother Binodamoyee, widow Subala, three sons Biswanath, Sisir and Ambar and five daughters. Thereafter in Title Suit No. 39 of 1946 brought by Biswanath for partition of the estate, there was a preliminary decree on compromise followed by a final decree passed on 20.8.1949 brought by Biswanath for partition of the estate, there was a preliminary decree on compromise followed by a final decree passed on 20.8.1949 under which the disputed holding was allotted to the share of Sisir exclusively and charged to secure payment of maintenance allowance at Rs. 90/- per month to Binodamoyee which was to be paid by Sisir to her and would be doubled in case of default in payment for three months. The charge was made enforceable in execution of the said decree. Thereafter as Sisif defaulted in payment of maintenance allowance to Binodamoyee, she executed the said decree in Title Execution Case NO. 33 of 1953 to enforce the charge by sale of the property purported to be the disputed holding. During the pendency of the execution case Sisir sold Holding NO. 14A, Stalkart Lane to one Swalram Bhowalka subject to the charge for maintenance allowance payable to Binodamoyee on 13th November 1953. On 20th July 1954 Binodamoyee auction purchased the property sold in Title Execution Case No. 33 of 1953 for Rs. 5, 157/- 12 annas 6 pie and the sale was confirmed on 25th August 1954. She took possession of the suit property through court on 4th August 1955. In the meantime, Howarh Municipality had filed a suit on 8th April 1953 being Title Suit No. 108 of 1953 for recovery of Rs. 36/-2 annas 6 pie as arrears of rates and taxes by enforcing the statutory charge on the disputed holding under S. 205 of the Calcutta Municipal Act, 1923 as extended to Howrah Municipality against Sisir Kundu. Swalram's name was recorded as owner of the disputed holding in the municipal assessment register on 29.10.54. On 13.8.55 Binodamoyee wrote to Howrah Municipality to mutate her name as purchaser of the disputed holding and the said letter was acknowledged by the Municipality on 26.9.55. In Title Suit No. 108 of 1953 brought by Howrah Municipality Swalaram the subsequent purchaser of the disputed holding was added as defendant and a preliminary decree was made on 23.4.1955 and thereafter a final charge decree was passed on 28.9.1955. Binodamoyee was not inpleaded in the said suit at any state. Her name was mutated in the assessment register of the Municipality as a owner of the disputed holding on 22.6.1956. Howrah Municipality put the final charge decree into execution in Title Execution Case No. 56 of 1956 in September 1956 in which the disputed holding was sold and auction purchased by the plaintiff Panchanan Bera (since deceased) on 22.3.1957 and the said sale was confirmed on 13.u.1957. Panchannan took possession of the disputed holding through court on 22.5.1957. Thereafter Binodanoyee filed an application under Order 21 rule 100 of the Code of Civil Procedure which was registered as Misc. Judicial Case No. 18 of 1957 complaining of dispossession by Panchanan and during the pendency of that case she died on 26.10.1958 leaving a Will bequeathing her estate to Indumati. The present defendant is the administrator pendente lite appointed in the testamentary suit arising out an application for probate of the said will. The aforesaid misc. case started by Binodamoyee was continued by the present defendant and it was allowed by order dated 26.9.1974 directing Panchanan to restore possession of the disputed holding to the present defendant. So Panchanan Bera brought the suit out of which the present appeal has arisen being Title Suit No. 67 of 1975.
(3.) The plaintiff's case in substance was that Binodamoyee purchased holding No. 14, Stalkart Lane and not then disputed Holding No. 14A, Stalkart Lane on 20.7.54 in title Execution Case No. 33 of 1953, that her alleged purchase was during the pendency of Title Suit NO. 108 of 1953 brought by Howrah Municipality to recover arrears of rates and taxes by enforcing the statutory charge on the disputed holding which was a prior charge and so Binodamoyee was bound by the ultimate result of the said suit and that Binodamoyee was not a necessary party in the said suit as her name was mutated in the assessment register of the Municipality in respect of the disputed holding long after the final charge in that suit. It was alleged that the plaintiff acquired valid title to the disputed holding by auction purchase in execution of the charge in favour of the Municipality and was entitled to retain possession thereof.