NANDA LAL AGRANI Vs. JOGENDRA CHANDRA DATTA

JUDGEMENT

(1.) This is an appeal by the first defendant in a suit for recovery of possession, of land upon declaration of title. The litigation has a protracted history, and a formidable list of issues was drawn up in the Trial Court; but many of them were not pressed in that Court and others have not even been mentioned in the course of argument here. The facts material for the determination of the substantial contention which has been advanced before us may be shortly recited.

(2.) The subject-matter of the litigation is a tract, of land, measuring about 30 bighas, described in Schedule A to the, plaint. The land belonged admittedly to the Sahas, who executed a mortgage in favour of Malik on the 29 September 1900. The mortgagee sued to enforce his Security, and obtained a decree on the 27 September 1902. At the execution- sale which followed in due course, on 14 May 1907, Samalka became the purchaser. He obtained a sale-certificate on the 28 April 1908. Samalka, it is said, was the nominal purchaser and bought in the property, one-third for the benefit of Ramdeo and two-thirds for the benefit of Rooya. On the 3 June 1910, and on the 8 July 1910, respectively, Rooya and Ramdeo, the beneficial owners, execufcetl two conveyances in favour of Banerjee. The plaintiff Dutt alleges that he was the real purchaser, and the conveyances were taken by him in the name of Banerjee. It would be a needless digression to narrate the story of the dispute between Dutt and Banerjee as to who became the beneficial owner under the conveyances ; it is sufficient to state that Dutt may now be taken to have established his title against Banerjee. who has consequently disappeared from the scene.

(3.) The history of the title set up by the first defendant who is the rival claimant may now be stated. In 1907, the Chaudhuries, who were the 6-annas co-sharer landlords, obtained against the Sahas. a money-decree for arrears of rent in respect of the disputed lands. This decree was executed and at the sale which followed on the 12 May 1908, the right, title and interest of the judgment-debtors was purchased by one Sarkar. On the 14 Octuber 1908, the first defendant, Agrani, purchased the propeity from Sarkar on the basis, of an alleged agreement for sale, dated 6 July 1908. In the interval, Sarkar had sold to Bose on the 20th July 1908, and on the strength of the title so acquired, Bose sold to the second defendant, Dutt brother of the plaintiff, on the 25 May 1910. These transactions, it has been, held do not affect the purchase by Agrani from Sarkar, and were evidently attempts made by the plaintiff to perfect his title by buying in outstanding claims. The controversy between the plaintiff, and the first defendant must consequently be determined on the following, basis, namely, that the title, of the plaintiff is traced to the mortgage-sale of the 14 May 1907, which itself rests on the mortgage of the 29 September 1900, while, on the other hand, the title of the first defendant cannot be traced beyond, the execution-sale of the 12 May 1908, when the right title and interest of the Sahas was exposed, for sale Before that date, the property had already vested in Samalka by virtue of the mortgage sale and could not again be brought to sale at the instance of the co-sharer landlords in execution of the money-decree they held against the Sahas; we are consequently not called upon to consider what would have been the position, if the so-called rent decree were not a mere money-decree and had the qualities of a true rent-decree. The inference is thus irresistible, that, prima facie, the first defendant has no title which can be successfully set up against the plaintiff. What, than, is his answer to the claim? His defence, as will presently appear, is founded on a clerical error which crept into the mortgage instrument.