ABDUL HAMID SARDAR Vs. BIJOY CHAND MAHATAP

JUDGEMENT

(1.) In this case, the plaintiff-appellant was the auction-purchaser of a patni sold under Regulation 8 of 1819 on 15 May 1922. Very soon afterwards, on 3 June 1922, the patnidar sued to set aside the sale under Section 14 of the Regulation. The plaintiff obtained symbolical possession as it is called on or about 9 June 1922. In December 1922 and in April and May 1923, he paid certain sums of rent to the zamindar. In the end the suit of the patnidar succeeded and the sale was set aside by the first Court. At the time the first Court set aside the sale, it provided that the patnidar should recover possession and it directed the zamindar to pay the plaintiff's costs and also to refund to the present appellant the purchase money with certain interest, to return him certain security and to bear his costs in the suit.

(2.) It is natural enough that in the written statement of that suit no mention should have been made by the present appellant, the auction-purchaser, of the sums of money paid as rent and I will assume that he did not refer to them and for that reason, it may be that the matter was omitted from the consideration of the Court of first instance. However the auction- purchaser as well as the zamindar appealed from the decision of the first Court and in the lower appellate Court the auction-purchaser contended that he should be refunded the rent for 1329 B.S. which he had paid: apparently, he must have contended that it should be refunded to him by the zamindar. The lower appellate Court observing that the matter was not mentioned in the written statement went on to express this opinion: I think Section 14 of the Regulation would not be a bar to such a suit for recovery of rent paid subsequently. In fact the lower Court awarded to the defendant 2, that is, the auction-purchaser, " the amount he claimed in the written statement." Thereupon the present suit was brought by the auction-purchaser claiming against the zamindar the return of the money which he had paid as rent. He claimed also against the defaulting patnidar. The defaulting patnidar did not appear and contest and judgment was given against him ex parte. Both the lower Courts have dismissed the suit so far as the zamindar is concerned.

(3.) On this second appeal, it is contended for the plaintiff-appellant first that Section 14 of the Patni Regulation is not exhaustive of the remedies of the plaintiff for the present purpose; secondly, that if it is thought to be exhaustive in view of the opinion expressed by the appellate Court in the suit of the patnidar to set aside the sale, it must be taken for the purpose of this case that it is not exhaustive -- the matter having been so decided between the parties and thirdly, that the plaintiff is quite entitled to recover what ho claims independently of Section 14, as money had and received to the use of the defendant or money paid without consideration. No question of limitation arises in the present case.