MOHESH CHANDRA MISSRA Vs. SRIMATI NISTARINI DASSYA

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for declaratory relief, instituted under Section 42 of the Specific Relief Act. The case for the plaintiff is that he holds a tenancy at a rent of Rs. 13 a year in respect of the disputed land under the Biswases and the Deys who hold under the first defendant, and that the first defendant ignored the interest of the Biswases and the Deys as also his own interest in the property and fraudulently instituted a rent suit against the third defendant a's if the third defendant was his tenant in respect of the disputed land at a rent of Rs. 13 a year. This suit was decreed ex parte on the 15 June 1916 and at the sale which followed the second defendant became the purchaser of the tenancy on the 14 November 1916. On the 20 February 1916 the plaintiff instituted the present suit for declaration that the disputed tenancy was held by him Under the Biswases and the Deys and not by the third defendant under the first defendant, He further prayed for a declaration that the decree obtained by the first defendant against the third defendant and the sale in consequence thereof were fraudulent and collusive. The Courts below have concurrently found that the allegations made by the plaintiff are substantiated by 1he evidence on the record. The District Judge has come to the conclusion that the suit for rent was instituted against an imaginary tenant for recovery of an imaginary debt and that the said decree and the subsequent sale were collusive and fraudulent. But while the Court of first instance held that the present suit was maintainable, the District Judge held that the suit was barred under the provisions of Section 42 of the Specific Relief Act. We are consequently called upon to decide, whether upon the facts found the plaintiff is entitled to the declaratory relief he seeks.

(2.) There can be no question that the claim for rent, the suit for rent and the sale for arrears of rent were all fraudulent and collusive and that the entire proceedings taken by the first defendant against the third defendant fulfilled the requirements of a collusive and fraudulent proceedings so graphically described by Lord Brougham in the case of Bandon V/s. Becker (1835) 3 Cl. & Fin. 479 at p. 510 : 9 Bligh (N.S.) 532 : 6 E.R. 1517 and applied in Surendra Nath Ghose V/s. Kali Gopal Mozoomdar 42 Ind. Cas. 431 : 26 C.L.J. 333 : 22 C.W.N. 367 : 45 C. 920, Akhil Prodhan V/s. Manmatha Nath Kar 22 Ind. Cas. 86 : 18 C.L.J. 616, Radha Madhab Paikara V/s. Kalpataru Roy 16 Ind. Cas. 811 : 17 C.L.J. 209, Rajah Ali V/s. Hedayet Ali 29 Ind. Cas. 699 : 22 C.L.J. 197 : 19 C.W.N. 1151. But notwithstanding this the first defendant has strenuously contended that the plaintiff should not have instituted this suits and, that if he did institute this suit, he should have asked for an injunction by way of consequential relief. He has further urged that as upon the death of the third defendant, the imaginary tenant, as the District Judge described her, her representatives were not brought upon the record, the suit must be deemed not to have been properly constituted and should have been dismissed on that ground alone. We are of opinion that there is no foundation whatever for these contentions.

(3.) Section 42 of the Specific Relief Act provides that any person entitled to any legal character or to any right to any property may institute a suit against any person denying or interested to deny his title to such character or right, and the Court may in its discretion, make therein a declaration that he is so entitled and the plaintiff need not, in such circumstances ask for any further relief, provided that two Court shall make any such declaration were the plaintiff, being able to seek further relief than a mere declaration of title omits to do so. There can be no question that the plaintiff is a person entitled to a right in the disputed property, namely, he is entitled to the tenancy in respect of the disputed land held on payment of an annual rent of Rs. 3 There is also no question that the first defendant is a person who his decided and whose interest it is to deny the title of the plaintiff to such right. It is, consequently, difficult to appreciate how Section 42 is a bar to the suit.