GIRISH CHANDRA GAGOPADHAYA Vs. SRI KRISHNA DE NAG

JUDGEMENT

(1.) This is an appeal by the defendants in a suit which was commenced by the plaintiffs respondents so far back as the 14 April, 1909 for apportionment of rent and for recovery of arrears. The litigation has had a chequered career during the "last thirteen years. The trial Court dismissed the suit on the 17 January 1910. The District Judge affirmed this decision on the 21 November, 1910. On second appeal to this Court, the suit was remanded for reconsideration on the 14 March, 1913 by Jenkins, C.J. and Mullick, J. On the 9 January, 1914, the District Judge remitted the case to the Court of first instance for retrial. On the 11th May, 1915, the trial Court decreed the claim in part. On the 23 August, 1916, the Subordinate Judge on appeal reversed this decision and dismissed the suit. On second appeal to this Court, N.R. Chatterjea and Newbould, JJ., set aside the decision of Subordinate Judge on the 22nd March, 1920, and remanded the case for reconsideration. On the 4 February 1921, the Subordinate Judge decreed the suit. The primary Court has thus decided on one occasion in favour of, and on another occasion against, the plaintiffs, while the lower Appellate Court has decided on one occasion in favour of and on two occasions against the plaintiffs. The last decision of the Subordinate Judge, which is in favour of the plaintiffs, has been assailed before us as vitiated by an error upon the question of adverse possession.

(2.) The facts material for the determination of the one point now in controversy lie in a narrow compass and may be shortly narrated. One Siba Sundari Debi was the proprietrix of a 3 annas share of a tract of mal and lakhraj lands, measuring 1827 bighas 11 cottas in 761 plots. On the 8 July, 1884 the first two defendants took a lease of this 3 annas share, which would comprise 342 bighas 10 cottahs; the annual rent was fixed at Rs. 793. The interest of Sibasundari Debi as landlord devolved, on her death upon one Nilmadhab Chatterjee. On the 13 September, 1892, the right, title and interest of Nilmadhab Chatterjee in 123 plots which included an area of 248 bighas, was sold in execution, and was purchased by the plaintiffs. The sale was confirmed on the 24 November, 1892 and symbolical possession was delivered to the purchasers on the 6 June, 1895. On the 10 January, 1893, the right, and interest of Nilmadhab Chatterjee in the entire tract of 1827 bighas 11 cottahs was sold, in another execution, in a different Court of higher grade, when one Radhanath Sarkar became the purchaser. This sale was confirmed on the 10 April, 1893, and symbolical possession was delivered to the purchaser on the 31 January, 1896. The defendants took a conveyance, on the 4 February,1896, from Radha Nath Sarkar, of the title accrued by him at the second execution sale. On the 14 April, 1909, the plaintiffs commenced the present action against the defendants for apportionment of rent and recovery of arrears in respect of the 3 annas share of 248 bighas purchased by them at the execution sale held on the 15 September, 1892. The plaintiffs assigned to the defendants the position of tenants under the lease of the 8 July, 1884. The only defence which is material at this stage and requires consideration, is, that at the date of the suit, the plaintiffs had no subsisting title, as the defendants had acquired a good title by adverse possession since the 4 February, 1896, when they took the conveyance from the purchaser at the second execution sale.

(3.) It is incontrovertible that Radha Nath Sarkar, the purchaser at the execution sale held on the 10 January, 1893, did not acquire a title which could prevail against the plaintiffs. No doubt, his purchase was at a sale held by a Court of a grade higher than that of the Court which held the sale of the 15 September, 1892, when the plaintiffs became the purchaser. It may further be conceded that the sale was held in contravention of the provisions of Section 285 of the Civil Procedure Code of 1882, which prescribed that when a property was under attachment by two Courts of different grades, the sale should be held by the Court of higher grade. It is well-settled, however, that a contravention of this provision did not invalidate the sale, if any, held by the Court of lower grade; Bykant V/s. Rajendra [1886] 12 Cal. 333, Ramnarayan V/s. Mina [1898] 25 Cal. 46, Gopichand V/s. Kasimunnessa [1907] 34 Cal. 836. This view, it may be noted, has received legislative approval in Section 63 of the Code of 1908. Consequently, when the sale in favour of the plaintiffs was confirmed on the 24 November, 1892, the title vested in them as auction-purchasers, and nothing was left in the judgment- debtor Nilmadhab Chatterjee which could pass to the purchaser, at the subsequent sale. There is thus no escape from the position that the purchaser at the second sale could not convey a valid title in the superior interest to the defendants by his conveyance of the 4 February, 1896. The only result of the conveyance was that the defendants, who were lessees under the grant of the 8 July, 1884, were placed in a position to set up an unfounded title to the superior interest. The plaintiffs, as already stated, did not, however, institute the present action till the 14 April 1909, in other words after the lapse of more than 12 years from the 4 February, 1896, when the defendants claimed to have acquired the superior interest in derogation of the purchase of that very interest by the plaintiffs on the 15 September 1892. The question thus arises, whether the title of the plaintiffs has been extinguished by hostile possession on behalf of the defendants for the statutory period.