BHAGWAN DAS MARWARI Vs. SURAJ PRASAD SINGH

JUDGEMENT

(1.) The suit out of which this appeal has arisen was dismissed by the learned Subordinate Judge on a preliminary ground without trying whether the allegations of fact made in the plaint were correct or not. In this Court his judgment has been sought to be supported not only on the ground on which it is based, but also on the ground that the plaint discloses no cause of action.

(2.) The history leading to the institution of the suit is as follows : The plaintiff Bhagwan Das who has since died and the father of Kanhaiya Lal, the defendant No. 11, Duli Chand were brothers. Babu Basdeo Narain Singh and Ram Udit Narain Singh, defendants third party to the suit owned the entire mahal No. 10 in the village of Dudhai, a portion of which, viz., a 10 anna share is in suit. It appears that the entire mahal was mortgaged with Bhajan Rai under two transactions, one being usufructuary and the other a simple mortgage. Duli Chand took a third mortgage which was usufructuary with respect to a 14 anna share in the mahal and paid off the usufructuary mortgage. Bhajan Rai, the father of the defendants second party, brought his suit for sale on foot of his simple mortgage and made Dali Chand a party to the suit. The suit was decreed and a little over a sum of Rs. 10,000 was declared to be payable under the decree. This decree was passed on the 13 of July, 1918. On the 20 of September, 1918, Duli Chand and his brother Bhagwan Das, the original plaintiff of the suit, purchased a 13 annas 6 pie share out of the entire mahal for a consideration of Rs. 36,000 and odd. The largest portion of the consideration money went to satisfy the debts already due to the two brothers under the previous mortgage and other transactions and the balance, a sum of Rs. 10,000, was left with the vendees for payment to Bhajan Rai. This money, however, was not at once paid. About a year after this purchase three sets of plaintiffs brought suits for preemption against Bhagvan Das and Duli Chand. One suit was instituted by the defendant No. 7 Musai Singh alias Udai Bhan Singh. Another suit was instituted by Ram Partab Singh, the defendant No. 8, in the suit These two preemptors have been described as defendant's fourth party. The third suit was brought by the defendants described as fifth party. The suits brought by the defendant's fourth party were decreed and the suit brought by the defendant's fifth party was dismissed. The Court ordered that the two successful plaintiffs should each pay one-half of the purchase-money already paid by the vendees, viz., one-half of Rs. 26,000 and odd and that the balance payable to Bhajan Rai should be paid by them in equal moieties. It was further ordered that if one of the plaintiffs failed to pay the amount payable by him and thus to pre-empt one-half share in the property, the other plaintiff might pay this amount and obtain possession over the other half. It appears that as a matter of fact the decretal amount due to Bhajan Rai was not paid and Bhajan Rai brought about a sale of a 10 anna share. The property being ancestral, the decree was transferred to the Collector for execution and he held a sale on the 21 of June, 1920, and the entire 10 anna share was purchased by the defendant first party Suraj Prasad Singh for the sum of Rs. 10,000. At the sale a subsequent mortgage was notified because the Deputy "Collector, who was acting for the Collector, discovered the existence of an incumbrance over the property. The learned Assistant Collector admits in his proceedings that the Civil Court had not ordered the notification of any such mortgage. The defendant first party does not admit that he is liable to pay any prior mortgage. The fact of the sale having come to his knowledge, Duli Chand deposited in Court the entire decretal amount with 5 per cant, on the sale price and prayed for the sale to be set aside. This application was opposed not only by the auction-purchaser, but also by the mortgagors judgment-debtors and the decree-holders. The Assistant Collector held that on account of the pre- emption decrees passed against him, Duli Chand had ceased to have any interest in the property and he could not make a valid deposit. He accordingly recommended to the Collector that the sale should be confirmed. The sale was accordingly confirmed on the 12 of October, 1920. An appeal was taken to the Commissioner but he upheld the order of the Collector. A petition to the Board of Revenue for revision was also unsuccessful. Bhagwan Das and Duli Chand had filed appeals against the preemption decrees and they were pending before this Court. An application was made by the respondents that they might be allowed to withdraw their suits and they offered to pay the costs of the appellants. This application was allowed. The date of this application as given in our printed record seems to be incorrect In the plaint the factum of this Court having permitted the preemptors to withdraw their suits is mentioned and this shows that the order must have been passed before the institution of the suit. out of which this appeal has arisen. It also appears that Duli Chand made an application to the Subordinate Judge asking him to set aside the sale held by the Collector and confirmed by him. This application was rejected by the Subordinate Judge and the judgment was upheld by this Court on the sole ground that Civil Court had no jurisdiction to interfere with the proceedings of the Collector, These two last-mentioned facts are not to be found on the record of the present case. But we were referred to the file of the Ex. F.A. No. 208 of 1923 of this Court which was decided on the 15 of April, 1924 by two learned Judges of this Court.

(3.) Now, the suit, out of which this appeal has arisen was brought on the following allegations. Bhagwan Das said that he was no party to the decree. He and his brother Duli Chand were the victims of a fraud committed jointly by the judgment-debtors, the decree-holders, the auction-purchaser and the preemptors. Evidently by pre-emptors the plaintiff means the successful pre-emptors. The plaintiff says that these persons combined to deprive the purchasers, namely Bhagwan Das and Duli Chand, of their property and with this view they in the first instance kept them in the dark as to the fact that execution proceedings were being taken and how they were going on. After the sale was held Duli Chand came to know of the sale and he made a deposit. The application-was opposed. The pre- emptors, as they were anxious that the property should go to them through the auction-purchaser, never made any attempt to pay the decretal amount. When they found out that the auction-purchaser had successfully resisted Duli Chand in his attempt for the sale being set aside, they withdrew their suit by an application in the High Court. This act of theirs was a part of the same conspiracy. On these allegations, Bhagwan Das asked that the auction sale of the 21 of June, 1920, might be declared to be void and he should be maintained in possession. In the alternative he asked for possession.