UPENDRA NATH BEZ Vs. JITENDRA NATH PARUI

JUDGEMENT

(1.) This appeal is directed against a concurrent decree in a suit primarily and in substance, fur declaration of title and, in the alternative, for redemption. The actual prayers in the plaint were for a declaration that the auction purchase of the suit property by defendant No. 1 in Title Execution Case No. 147 of 1943 of the 3rd Court of the Munsif at Howrah was not binding and operative against the plaintiff and as such the same did not affect his title and possession in the suit property, and in the alternative, for redemption of the said property. The prayers in effect meant, as I have already stated, a prayer for declaration of the plaintiff's title to the suit property and, in the alternative, for its redemption. The suit has been decreed on the primary relief granting the plaintiff an unqualified declaration of his title to the suit property. Hence this appeal by the contesting defendant.

(2.) A mass of events lies behind this litigation which, shorn of unnecessary details, may he stated as follows : One Bhusan Kumari Dassi was the owner of two holdings Nos. 50 and 56/1 Ananda Prosad Banerjee Lane, Bantra, within the Howrah Municipality. Holding No. 56 comprised an area of about 9 kattahs and holding No. 56/1 measured about 3 Kattahs 15 yds. In or about 1936 Bhusan Kumari sold 3 kattahs out of holding No. 56 to one Sm. Gbritamoyee Dasai and the remaining 6 kattahs of the said holding and the other holding 56/1 which together form the subject matter of the present suit were transferred by her in 1941 to one Tinkorilal Chandra. In or about 1942, Tinkori transferred the suit property to one Umabala from whom the present plaintiff Jitendra acquired it by a registered kohala on 26-4-1945. In the mean time on 20-8-1941, the Municipal Commissioners of Howrah had brought Title Suit No. 237 of 1941 in the 3rd Court of the Munsif at Howrah against Ghritamoyee alone for recovery of a charge decree in respect of holding No. 56 Ananda Fro sad Banarjee Lane on account of arrears of Municipal rates from 1st quarter of 1933-34 to 2nd quarter of 1941-42. In execution of the decree obtained in the suit, holding No. 56 was put up to sale on 17-5-1944 when it was auction purchased by the present defendant No. 1 Upendra Nath Bez who is the appellant in this appeal. The sale was confirmed on 30-6-1944 and the auction purchaser Upendra obtained delivery of possession of that portion of holding No. 56, namely, 3 kattahs, which was in the possession of the judgment-debtor Ghritamoyee. Later on, disputes arose between the plaintiff Jitendra and the auction purchaser defendant No. 1 Upendra over their respective rights in regard to the present suit property which eventually led to the institution of this suit.

(3.) The facts, as stated above, have been found by the two courts below and they are not open to challenge in this second appeal. Mr. Das Gupta who appears in support of this appeal, however, contends that, even on those facts, the courts below were wrong in giving the plaintiff a declaration of title to the suit property and should have, in any event, made it subject to his redeeming the charge decree (in execution whereof the appellant made his purchase) by proportionate payment. Mr. Das Gupta has further contended that the present suit was barred by Section 538 of the Calcutta Municipal Act which applies to Howrah and also by the proviso to Section 42 of the Specific Relief Act.