HARIPADA GHOSH Vs. FEKTOO BIBI

JUDGEMENT

(1.) THIS appeal at the instance of the defendant no. 2 arises out of a suit by the plaintiff for declaration of title and also for setting aside the decree passed in Title Suit no. 222 of 1950 by the munsif, 2nd Court, Howrah as well as Title execution Case no. 87 of 1957 and the auction sale held in that execution on 14th of August, 1959 is null and void, fraudulent without jurisdiction and not binding upon the plaintiff and for permanent injunction restraining the defendant from taking any step in pursuance of the sale, execution and decree either in Title Suit no. 518 of 1961 or the Title Execution Case 70 of 1963 as well as for declaration that only Kietaban's share in the suit property had been put to auction.

(2.) THE plaintiff's case is that the suit property originally belonged to one Mahabub ali and that on Mahabub's death it was inherited by his son Habib and Hanif, thereafter on the death of Habib his share in the property was inherited by his widow kietaban, two sons named Joynal and Martuja and one daughter named Kektu Bibi who is the plaintiff in the present case. Ketaban died on 22nd of November, 1951 leaving two minor sons Jainal and Martuja and one daughter the plaintiff and her heir. During the communal riot in 1950 the plaintiff pro forma defendants and her mother Ketaban went over to East Pakistan. Thereafter Murtaja died while living there, leaving the plaintiffs and pro forma defendant no. 4 as his heirs. It appears that the earlier suit was filed by the Municipality for the default in payment of municipal taxes under the Calcutta Municipal Act, 1923 which was applicable to Howrah at that point of time. The municipal tax was charged on the property. The charge suit was decreed and in a auction sale the defendant no. 2 purchased the property in question. It is stated in the plaint that the earlier suit was filed against a dead person and the interested persons were not impleaded. Therefore, the decree itself and consequently the auction sale is without jurisdiction. The defendant no. 2, who is respondent no. 1 here filed a written statement inter alia contending that he is a bona fide auction purchaser for value and got possession through Court. The judgment debtors were not in possession in respect of the suit property and the two rooms on the north and south were occupied by the refugees and subsequently one of the refugees, however, left the premises and he is now in occupation of the defendants room and the other room was occupied by Keshab Ch. Das and his brother, defendant No. 2. had instituted the title suit being no. 518 of 1961 in the Court of 2nd Munsif and got ejectment decree. The allegation of collusion with the Municipality is denied by the defendant no. 1. It is stated that Mahabub ali left only one son and he had no other son in the name of Hanif as alleged. The defendant no. 1 Municipal Commissioner of howrah filed a written statement in the case denying the allegation made in the plaint. It is stated that the defendant no. 1 filed title Suit no. 222 of 1950 against the persons interested for the just dues of the Municipality. The said suit was decreed and in execution the defendant no. 2 purchased the property for value. Hence the defendant no. 1 denied the collusion with the defendant no. 2 as alleged by the plaintiff.

(3.) ON these pleadings the parties-came to trial. The trial court held inter alia that no notice was served on the Municipality under section 538 of the Calcutta Municipal act, 1923, Therefore, the suit filed by the plaintiff is not maintainable. It has been found on fact that the plaintiff left the suit premises and was dispossessed in 1950. The plaintiff, it has been held by the court of first instance on the basis of Ext. 13, was aged 15 years in January, 1950. It has been held by the court of first instance that the suit is not barred by limitation as the suit was filed within time on the principles laid down in AIR 1940 Cal. 589. It has been further held by the trial court that no notice was issued by the plaintiff before filing the present suit on the Commissioner of the Municipality under Section-538 of the Calcutta Municipality Act, 1923. The suit was therefore dismissed. The plaintiff preferred an appeal. The appellate court came to a finding that the suit is not barred by limitation according to the decision reported in AIR 1940 Cal. 589. On the question of notice it has been held that the Commissioner of the Howrah Municipality are not necessary parties and therefore, non service of notice under section 538 of the Calcutta municipality Act, 1923 is not fatal to the filing of the suit.