DEO KARAN AGARWALLA Vs. SATYENDRA GHOSAUL

JUDGEMENT

(1.) This is an application under Section 115 of the Code o Civil Procedure at the instance of one Deo Karan Agarwalla and it is directed against an order passed by a Munsif of Alipore in respect of a petition under Order 21 Rule 97 of the Code of Civil Procedure by the decree-holders.

(2.) Before going into the merits of the case it is necessary to state certain facts. Opposite parties 1 to 19 are the shebaits of a debutter estate known as Bhukailash Raj Estate. Many years ago the predecessors of Satyadhan Ghosal and others are stated to have taken settlement of the suit lands from the shebaits of the debutter estate. Later on a portion o this land was surrendered and the remaining six bighas and thirteen cottahs continued to be possessed by Satyadhan Ghosal and his co-sharers. It is the case of the petitioner that Satya Dhan Ghosal and his co-sharers are settled raiyats as contemplated by the Bengal Tenancy Act in respect of the said plot of land which was settled by them in September 1939 with one Rasananda Jana. Title Suit No. 463 of 1945 was instituted by Satyadhan Ghosal against Rasananda Jana and on the 12th January 1948 a decree was passed therein against Rasananda Jana. In execution of that decree the land was auction-purchased by Deokaran Agarwalla and the petitioner's case is that he took khas possession peacefully through court on the 8th January 1949 and had ever since been in possession thereof. Title Suit No. 261 of 1949 was filed by the shebaits against Satyadhan Ghosal and his co-sharers in their personal capacity. That suit was one for ejectment. In that suit neither Rasananda Jana nor the present petitioner Deo Karan Agarwalla was made a party. Ultimately their suit was decreed ex parte on the 4th May 1949. On the 25th April, 1949 the shebaits opposite parties Nos. 1 to 19 instituted Title Suit No. 18 of 1950 against the present petitioner Deo Karan Agarwalla and Rasananda Jana for a permanent injunction restraining the petitioner from erecting any structure on the disputed land upon the allegation inter alia that the present petitioner was a trespasser and had no title to the land. That suit was contested by the present petitioner upon the ground inter alia that the decree obtained in Title Suit No. 261 of 1949 was a collusive one, that it had the effect of a surrender of the tenancy by Satyadhan Ghosal and his co-sharers, that the present petitioner had been elevated to the position of a direct tenant under the debutter estate and that he had acquired a right of occupancy on the disputed land. This suit namely Title Suit No. 18 of 1950 was decreed by the trial Court in part and it was held by the trial Court inter alia that the present petitioner had become a direct tenant under the debutter estate that the decree obtained by the shebaits on the 4th May 1949 in Title Suit No. 261 of 1949 was collusive and that the status of the present petitioner was that of an occupancy raiyat. Ultimately a mandatory injunction was passed against the present petitioner in that suit. The present opposite parties Nos. 1 to 19 preferred an appeal against the decision of the trial court and there was also a cross-objection by the present petitioner. The appeal was Title Appeal No. 169 of 1952. In the appellate Court the appeal took "a peculiar turn", to use the words of the learned Judge. The learned Advocate; for the shebaits appellants gave out that he did not like to press his prayer for injunction which had been refused by the trial Court if the issue as to status was left open for the purpose of that appeal. In spite of protest by the learned Advocate for the respondents who were Deo Karan Agarwalla and Rasananda Jana the learned Judge left the question of status open and undecided with the following! observations

(3.) It has been necessary to refer to the history of the previous litigation in order to arrive at a proper decision regarding the question in controversy before me. Before proceeding further it may be mentioned that on the 28th January, 1950 the shebaits decree-holders put the decree in Title Suit No. 261 of 1949 into execution and applied for police help in the matter of delivery of possession as resistance was offered to the delivery of possession. The present petitioner objected to the delivery of possession contending inter alia that the decree was collusive, that the petitioner is a tenant under the Bengal Tenancy Act and was not bound by the decree and that he was in peaceful possession in his own right and in his own interest. As he was unsuccessful in respect of the objections raised by him in the lower court, he came up before this Court and obtained a value in Civil Revision No. 1572 of 1950 which was disposed of by Roxburgh J. who directed investigation in the case of the objector under Order 21 Rule 97 of the Code of Civil Procedure before he could be ousted. This is how the petitioner under Order 21 Rule 97 of the Code of Civil Procedure by the decree-holders came up for disposal before the lower court and the learned Munsif has disposed of the same by his order No. 103 dated the 10th January 1958 in Misc. Case No. 161 of 1958. The learned Munsif has held inter alia that the present petitioner being a sub-tenant under the judgment-debtor cannot have a right to be in possession of the property on his own account, that is, his right to be in possession on his own claim is contrary to the accepted rights in law, and that he cannot come within the meaning of bona fide claimant. Ultimately the application of the decree-holders has allowed and they were directed to be put into possession of the suit land.