BAIRAGI CHARAN MOHANTI Vs. BASANTA PRIYA DEVI

JUDGEMENT

(1.) THE suit had been filed in respect of A and B schedules lands and was decreed in respect of A schedule property. No appeal was filed and the matter became final. Only B schedule property constitutes the subject-matter of the second appeal. Facts relating to B schedule are stated hereunder. Defendant 1 is the recorded tenant of B schedule property with an area of 0. 57 acre. On 1-5-46 a rent suit filed by the landlord against defendant 1 in respect of this property was decreed. On 30-9-46 defendant 1 executed an unregistered kabala in respect of this property in favour of the plaintiff. On 31-3-48 B schedule property was sold in court auction in Execution Case No. 1110 of 1947-48 in execution of the decree for rent. Defendant 3 purchased it in court auction. On 16-48 plaintiff filed an application under Section 228 of the Orissa Tenancy Act (hereinafter referred to as the Act) for setting aside the auction sale on the ground of material irregularity and fraud in publishing and conducting the sale. Plaintiff filed T. S. No. 44/49 against defendant 1 for specific performance of the unregistered kabala dated 30-9-46 and the suit was decreed on 9-2-51. On 17-1251 the Court executed the sale deed (Ex. 2) in favour of the plaintiff on behalf of defendant 1 in Execution Case No. 135/51. On 4-8-52 the Executing Court dismissed the application under Section 228 of the Act (Ex. 10 ). It held that the sale proclamation had not been published in the locality and there was material irregularity in conducting the sale and that the property was undervalued resulting in substantial injury. It, however, dismissed the application on the finding that the plaintiff had no interest in the disputed land till 17-12-51 when the sale deed (Ex. 2) was executed by the Court in her favour. She filed Execution Appeal No. 38 of 1952-53 which was dismissed on 22-12-52 (Ex. 9 ). The appellate Court recorded many queer findings. It held that the kabala, though executed on 17-12-51 and registered on 20-12-51, took effect from 30-9-46, the date of execution of the unregistered kabala, and the plaintiff was to be deemed to be the tenant on that date. According to it, the decree for arrears of rent was a money decree and it did not affect plaintiff's interest. It, however, held that the plaintiff ought to have filed an application under Order 21, Rule 90, C. P. C. and not under Section 228 of the act which did not apply unless the sale was in execution of a rent decree. As the application under Section 228 had been filed beyond thirty days, it dismissed the application as being barred by limitation. Being disappointed plaintiff filed the present suit on 2-11-53 for declaration of title, confirmation of possession and permanent injunction, or in the alternative, for recovery of possession. Defendant 3 alone contested the suit. The learned Munsif recorded the following findings; (i) Title did not pass to the plaintiff prior to 17-12-51, the date of execution of Ex. 2. Plaintiff's purchase could not prevail against the purchase by defendant 3 in auction sale; and (ii) Plaintiff was in possession but without title. He accordingly dismissed the suit without costs. In appeal filed by the plaintiff, the only point urged was that the purchase bv defendant 3 in court auction was vitiated by fraud and, as such, defendant 3 derived no title. It is to be noted that initially fraud was not pleaded in the plaint and no issue was framed thereon. The learned Sub-Judge entertained this ground, framed an issue on the question of fraud and directed the trial Court to allow the plaintiff to amend the plaint on the question of fraud and to give full opportunity to the parties to lead evidence and then to return a finding. Obviously this power was exercised under Order 41, Rule 25, C. P. C. The appeal was kept pending in the file of the lower appellate Court until the finding on the question of fraud was returned by the trial Court. The trial Court in accordance with the aforesaid direction allowed the plaint to be amended. Para 10 of the plaint mentioned the particulars of fraud and an additional written statement was filed denying fraud. The only additional evidence, after remand, on the question of fraud was that P. W. 1, D. W. 1 and D. W. 3 were recalled and further examined. The trial Court returned a finding that fraud was committed. The lower appellate Court affirmed that finding and passed a decree in favour of the plaintiff in respect of B schedule property. Plaintiff's possession was confirmed and a permanent inj unction was issued against defendant 3. Against the appellate decree, the second appeal has been filed by defendant 3.

(2.) MR. Panda in support of the appeal raised the following contentions:

(3.) BEFORE dealing with Mr. Panda's argument, it would be proper to dispose of an argument of Mr. Dasgupta that the purchase by defendant 3 in Court auction was benami for defendant 1. Such a plea was never canvassed before the Courts below who have recorded no findings thereon. The plea is not a pure question of law but a mixed question of law and fact which cannot be permitted to be raised for the first time in second appeal. It is accordingly rejected.