PROVASH CHANDRA BASAK Vs. MADALASA DEVI AND ORS.

JUDGEMENT

(1.) Premises No. 96, Mechuabazar Street belonged to three persons including the petitioner Provash Chandra Basak, one Mahamaya Dasi and another person whose name does not appear from the record. On the 15th June, 1938, Sushil Chandra Sen auction-purchased 8 annas share of the premises at a sale held by the Registrar of this court, on the Original Side and obtained a sale certificate on the 5th Aug., 1938. Thereafter Sushil Chandra Sen obtained a decree in a suit for partition. Premises No. 96, Mechuabazar Street were divided into three lots, namely, lots Nos. 1, 2 and 3. According to the petitioner, who is the plaintiff, premises No. 96, were renumbered as premises Nos. 96A, and 96B, Mechuabazar Street. Lots Nos. 1 and 2 being comprised in premises No. 96A and lot No. 3 being comprised in premises No. 96B. According to the defendant opposite party, however, the old premises No. 96, Mechuabazar Street were divided into three separate premises, viz., new premises No. 96, new premises No. 96A and new premises No. 96B. I am not, however, concerned with that question in the present revision case. There was a direction in the decree in the partition suit that upon the death of Mahamaya, half of her share would go to the petitioner Provash Chandra Basak and the remaining half to Sushil Chandra Sen. On the 16th Jan., 1945, the opposite party No. 1, Madalasa Devi purchased the interest of Sushil Chandra Sen by an indenture of conveyance. It appears that the consolidated rates due to the Corporation of Calcutta remained due from the 1st quarter of 1935-36 up to the 3rd quarter of 1940-41.

(2.) On the 15th April, 1947, the Corporation of Calcutta instituted a suit on the Original Side of this court being suit No. 929 of 1947 for a declaration of charge in respect of the aforesaid arrears which amounted to Rs 2,127-11.

(3.) In that suit Mahamaya Dassi, the petitioner, and the opposite party No. 1 Madalasa Devi, were impleaded' as defendants. Between the 4th Aug., 1950 and the 6th Nov., 1952, the petitioner paid up all the dues of the Corporation of Calcutta together with a sum of Rs. 25 as costs. As a result of that payment the claim made by the Corporation of Calcutta was satisfied. Thereafter the petitioner instituted the suit out of which this Rule arise in the Court of Small Causes for recovery of one-third of the amount which was paid by him to the Corporation of Calcutta, in suit No. 929 of 1947. Both the courts have dismissed the plaintiff's suit, the first court dismissed it upon the ground that Madalasa having purchased from Sushil Chandra Sen on the 16th Jan., 1945, was not liable for the consolidated rates due to the Corporation of Calcutta from the 1st quarter of 1935-36 up to the 3rd quarter of 1940-41. On an application by the plaintiff for reference to Full Bench of the Court of Small Causes, the decree of the trial court was affirmed but on a different ground. The Bench which disposed of that application came to the conclusion that the claim of the Corporation of Calcutta in suit No. 929 of 1947 was at best a charge upon the property and as Madalasa was a bona fide purchaser for value without notice, who was not bound by the charge and therefore she was not liable for the amount. The Bench also made a further observation that the question whether Madalasa opposite party No. 1 was a purchaser for value without notice could not be gone into in the present litigation. Against the concurrent decrees of dismissal the plaintiff has obtained the present Rule from this court.