KUNJ BEHARI BASACK Vs. PULIN KRISHNA ROY

JUDGEMENT

(1.) The petitioner has presented two petitions under Section 115, Civil P. C., with regard to two suits decided in the Court of Small Causes.

(2.) The petitioner holds certain lands at 28 Chittaranjan Avenue upon which certain huts were erected. One Ata Mahomed was the tenant of the land and owned the huts erected thereon. It is stated in the petition that1 he was the petitioner's tenant at all material times. Prior to 15th September 1930 a sum of money became due to the petitioner from his tenant on account of rent and taxes. The tenant was unable to pay and it was agreed between them in writing, on 15 September i930, that the tenant would not alienate the huts without the consent of the petitioner until the arrears were paid off. On 17 December 1930 the petitioner purchased the huts from Ata Mahomed for Rs. 3,200 made up of Rs. 1,503-14-6 on account of rent and taxes and Rs. 1,694-1-6 paid in cash. A receipt was given, but there was no conveyance. Subsequently the huts were attached and the petitioner preferred a claim. His claim was dismissed on the ground that the huts could not be transferred without a properly registered conveyance. Thereupon he paid off the creditor and got rid of the attachment, and Ata Mahomed agreed to execute a formal conveyance for a total sum of Rs. 3,300, the extra Rs. 100 being the amount paid to the creditor. Subsequently the huts were again attached in execution of decrees passed in the two suits which are the subject-matter of the present proceedings. The petitioner preferred a claim in both suits and he alleges that the value of the huts is Rs. 3,300 or thereabout. The learned Judge disallowed the claim on. the ground that the conveyance was a colourable transaction meant to defraud the creditors of the judgment- debtor. The petitioner made an application for a new trial on the ground inter alia that the Court had no jurisdiction, but this application was dismissed. The main ground of the present application is that the huts being of the value of over Rs. 2,000 the Small Cause Court had no jurisdiction to deal with the matter.

(3.) In accordance with the procedure in the Small Cause Court the petitioner did not make his application for execution in the two suits to which I have referred, but himself instituted two suits making the two decree holders defendants. His cause of action was stated to be that the defendant had wrongfully attached the huts in execution of a decree obtained by him against Ata Mahomed, that the huts together with the land upon it belonged exclusively to the plaintiff and that the said Ata Mahomed had no interest therein, that the plaintiff is the owner of the huts by virtue of a registered conveyance dated 25 April 1931 from Ata Mahomed, and has been in possession by paying both owners and occupiers share of taxes and by accepting a tenant (that is to say a tenant other than Ata Mahomed) and receiving rent from him, that Ata Mahomed had left possession of the huts, that the plaintiff was the owner and in possession thereof in his own rights, and that Ata Mahomed had no interest in the huts at the time when the attachment was effected. It will be observed that this claim in terms contradicts the statement in the petition that Ata Mahomed was the petitioner's tenant at all material times.