BHUPENDRA NATH LASKAR Vs. RAI CHARAN PURKAIT

JUDGEMENT

(1.) The plaintiff-respondent brought a suit for confirmation of possession on declaration of his title to the land in suit and for cancellation of the defendant's auction-purchase. The facts are that the property in suit is a nontransferable occupancy holding held by Haripada Haldar and Bistupada Haldar under defendants Nos. 3 to 6 On the 20 February 1917, the plaintiff purchased this holding from the Haldars by a private sale. The landlords brought a suit for rent against the original tenant and the holding was eventually sold on the 27 November 1917 and purchased by the present appellants who are defendants Nos. 1 and 2. On the 17th January 1918, the plaintiff filed an application under Order 21, Rule 90 to have the same set aside. On the 9 March this application of the plaintiff was dismissed for default and the sale was confirmed. On the 18 March 19l8, the plaintiff applied under Order 9, Rule 5 for the revival of this application under Order 21, Rule 90. On the same day the petitions were filed, one in the revival case and the other in the case Order 21, Rule 90. By these two petitions the plaintiff and the defendants Nos. 1 and 2 are alleged to have compromised the dispute between them on the following terms: " The auction-purchasers opposite parties having agreed to give up the sale on taking money, this petition is filed with their consent praying that the re-hearing asked for may be allowed, that the original case for setting aside of the sale may be restored to file and that suitable orders may be passed for setting aside the sale." No orders could be passed on these petitions because the landlord decree-holders were not parties to them. The oases were accordingly adjourned from time to time for the purpose of enabling the plaintiff to prove his case under Order 21, Rule 90 and were ultimately dismissed on the 30 April 1918 on account of the plaintiff's absence. On the 7 June 1918, the sale certificate was issued and on the 11 June possession was delivered to the appellants under the sale certificate. Thereafter the present suit was filed by the plaintiff for recovery of possession of the property in suit on a declaration of his title and for a declaration that the purchase by the appellants was liable to be set aside. The Courts below have given the plaintiff a decree. The learned Munsif has found that the plaintiff's cause of action was the petition of compromise and the decree he passed was that the plaintiff's right to the possession of the land by virtue of his private purchase be declared as against defendants Nos. 1 and 2 whose right to the possession of the same under their auction-purchase be declared to have been lost as against the plaintiff. On appeal the learned Subordinate Judge has confirmed that decree on the view that " the plaintiff is entitled to get possession of the property by right of his purchase as the sale cannot stand on account of the compromise notices above." As I understand, the effect of the decree of the lower Appellate Court is that by the petition of compromise filed on the 18 March 1918, the sale became cancelled and the plaintiff's right to obtain possession of the property from the -defendants accrued from that date. I think the view taken by the Courts below is wrong in law. The plaintiff as purchaser of a non-transferable occupancy holding has acquired no title against the landlord nor did he acquire any title against the auction-purchasers in a sale pursuant to the decree obtained by the landlords for arrears of rent. The only question that calls for decision is whether by the petition of compromise the appellants lost their right which they had obtained under the sale. The sale as has been noticed, was confirmed on the 9 March 1918 before the petition of compromise was filed. That petition only mentioned that the appellants had agreed to give up the sale after the petition was filed by the plaintiff and it was consented to by the Pleader on their behalf. There was no legal transfer of the interest of the defendants to the plaintiff; nor was the sale actually set aside. There can be no question that the compromise which the plaintiff wanted to effect was made under Order 23, Rule 3. That provision of the law requires that such compromise or satisfaction must be recorded by the Court and a decree in accordance with it passed by it. In this case no effect was given to this petition for the obvious reason that the case could not be decided in the absence of the landlord. The agreement between the plaintiff and the auction-purchasers to let the sale stand cancelled was not binding on the landlord and, therefore, the case was adjourned from time to time until it was dismissed for the plaintiff's default. I do not think that this petition of compromise has conferred any title upon the plaintiff. The view taken by the Courts below is that by this petition of compromise the appellants gave up their right as auction-purchasers. I fail to sea how this interpretation can be put upon that petition. Their right as auction purchasers had accrued before that petition was filed and the most that can be said of the petition of compromise is that it was filed before the Court asking it to record the terms on which the parties had settled their differences. No effect was given to it by the Court and, therefore, it remained in an inchoate state. Beside, the sale, in a proceeding in which all the parties interested were not parties to the compromise, could not be set aside by an agreement between some of the parties. The procedure for setting aside a sale has been prescribed under Order 21, Rule 90, C.P.C., and it is not open to the parties to adopt any other method of having the sale set aside. The question would have been different if the landlords had also joined as it would have amounted to an admission by them that there was an irregularity in the sale which vitiated it. An authority for this simple proposition may be found in the case of Janeswar Sikdar V/s. Kailash Mandal .

(2.) Then it has been argued that the equity is on the side of the plaintiff and the defendants should not be allowed to take advantage of their dishonest conduct. It has been found by both the Courts below that the defendants have received the money which was paid as the price of the property. But if there is any equity on the side of the plaintiff, there is also equity available by the defendants in view of the result which has been brought about by the plaintiff due to his conduct. The present position which the appellants occupy is that, as auction-purchasers of the property, they are liable for rent to the landlord whereas the property remains in the possession and enjoyment of the plaintiff. This position has been brought about by the default of the plaintiff. On the whole I think that the plaintiff has not been able to make out any valid and legal cause of action as against the defendants Nos. 1 and 2 for recovery of possession of the property in suit and that the suit is not maintainable. In this view this appeal - must be allowed, the decree of the lower ? Appellate Court set aside and the suit dismissed with costs in all the Courts. Duval, J.

(3.) I agree, whatever right the plaintiff might have gob as against the J previous tenants by his purchase in February 1917 of the non-transferable holding, appears to have disappeared after the sale by the landlord's rent-decree. The a sale has been confirmed. He certainly could get no title by virtue of anything which had been done after possession was taken in confirmation of the sale or by his making a petition in Court to which the landlord was not a party and did not con-sent. In this view I hold that the plaintiff is not entitled in this suit to raise the question whether he is entitled to any damages or recover the money which he might have paid to the defendants at the time when he put in the petition with the consent by some of the defendants. I think that the suit should be dismissed with costs in all the Courts.