KALYAN DAS Vs. BRIJ KESHORE

JUDGEMENT

(1.) This is a second appeal. The facts and the circumstances out of which it arises are a little curious. The suit which was instituted as long ago as 9 August 1935, was for possession of a half interest in a house at Benares which it is sufficient for me to describe as house No. 146. This house and its adjoining house No. 147 have become the subject-matter of this and a good deal of this litigation in the following manner. The entirety of house No. 147 and a moiety of house No. 147 belonged to two persons, who are father and son named Nasir Husain and Nazeer Husain. The remaining moiety of house No. 146 belonged to a lady named Mt. Razia Begam, who was the wife, I think, of Nazir Husain. At some date prior to 1922, which is not material, Nasir and his son Nazeer Husain mortgaged the whole of house No. 147 and their moiety of house No. 147 to Kalyan Das, the plaintiff in the proceedings out of which this appeal arises. In 1922 in a suit No. 50 of that year t he plaintiff took steps to enforce his mortgage. He obtained a preliminary, and in due course a final, decree and ultimately the mortgaged property came to be sold by the Court. The sale was proclaimed for 5 October 1923. It was to be held by the local amin and a sale proclamation was issued. With what can only have been great carelessness, the sale proclamation mentioned only a house No. 146.

(2.) The auction took place. At it there were present, among other persons, the plaintiff and the original defendant to these proceedings, Munshi Sundar Lal. It may be mentioned in passing that Munshi Sundar Lal died during the pendency of the proceedings which accounts for the fact that the present respondents are his heirs. Sundar Lal, as far as can be gathered, had no previous connexion with this property and was not, as far as I can see, in any way connected with the mortgage. The auction took place on the spot and the amin first put up house No. 147. It is alleged and the lower Courts have found it to be true as a fact and I accept it that the amin in putting up house No. 147 for sale pointed out to the assembled bidders house No. 146. It is not suggested that this was anything but a bona fide mistake. But it was, as it seems to me, the origin of the whole trouble. Upon that footing the defendant, Munshi Sundar Lal, bid for a house described as No. 147, supposing it to be that house which the amin had pointed out, namely, house No. 146. In setting out the facts briefly I need say no more than this at this stage, that it has been conclusively found in the Courts below - and I again agree with it - that the defendant Munshi Sundar Lal too made a bona fide mistake. He intended to bid for, and did in fact bid for, what he believed to be house No. 146. Not only that he bid for the house which had actually been pointed out by the amin. Eventually the lot was knocked down to him for a sum of approximately Rs. 1100 and he went away believing that in purchasing the house described as No. 147 he had actually purchased the house that had been pointed out by the amin. It would perhaps be easier to follow if I say at that stage that house No. 146 lies immediately to the west of house No. 147. And the two houses respectively are referred to in the judgments of the lower Courts and will be referred to by me, as the "western house" and the "eastern house" respectively. The western house is No. 146 and the eastern house is No. 147. It was the western house that was pointed out to the defendant as the lot for which he was invited to bid and for which he did bid and which was wrongly described by the amin as No. 147.

(3.) Immediately after the sale to the defendant, lot No. 140 was put up. This, of course actually, was one moiety of the western house for which the defendant had already bid and of the whole of which he conceived himself to have become the purchaser. When this was put up, the plaintiff-mortgagee himself bid for it and purchased it. Now, it is necessary carefully to observe what followed. That auction sale was held on 5 October 1923. On 5 November 1923 the sales were confirmed, and subsequently sale certificates were, granted and possession was given to the respective purchasers. It is perfectly true that the sale which was confirmed to the defendant and the sale certificate which was given to the defendant were in respect of house No. 147. That is only natural and logical because, whatever it was that the defendant had purchased, he had purchased it as house No. 147. The significant thing, however, is that the defendant actually took possession of house No. 146, that is to say, the western house and the plaintiff actually took possession of house No. 147, that is, the eastern house. Put in other" words, each of them took possession of a house which, if regard be had only to the strict numerical description of them, was the house purchased by the other. It appears that the defendant, Sundar Lal, as regards the western house took a number of steps, to which I shall refer more particularly in a moment, all of which point to the fact that he was under a genuine belief that the western house was the house which he had purchased and ultimately he went so far as to pull down all the existing buildings on it and to build new buildings at a cost which, I am told, amounted to Rs. 11,000. Meanwhile, the plaintiff throughout this time remained in possession of the eastern house. And, as far as I can see, took no steps to rectify any mistake that had been made, assuming that he knew of it.