JOGENDRA NATH HALDAR Vs. JOGGESWAR MONDAL

JUDGEMENT

(1.) This second appeal arises out of a judgment and decree of the Subordinate Judge, 3rd Court, of the 24-Parganas dismissing the appeal from the learned Munsif s judgment in a suit for recovery of possession of a holding upon declaration of the plaintiff s right hereto. The appeal is on behalf of defendants Nos. 1 and 2, the defendant No. 2 being the transferee of an occupancy holding which was not transferable by custom and defendant No. 1 being the mortgagee from defendant No. 2. The holding belonged to defendant No. 4. On the 14th July 1896, defendant No. 4 sold the holding to defendant No. 2 without obtaining the consent of the landlord. The rent appears to have been always paid on behalf of the recorded tenant, who appears not to have been the defendant No. 4 but a lady whose connection with the other defendants is unknown. In June 1902 when the landlord, defendant No. 3, had obtained a decree for rent against defendant No. 4 whom he had recognised as tenant, the defendant No. 2 deposited the decretal amount in order to save the holding. The deposit was made by defendant No. 2 on behalf of defendant No. 4, but in making it he used the words "dakhalikar kharid sutre" or the man in possession by virtue of purchase." The landlord withdrew this deposit; he again sued defendant No. 4 and obtained a decree on the 19th January 1910. He sold the holding in execution of this decree. The plaintiff purchased the holding at auction-sale for Rs. 175. On the 19th September 1910, the sale was set aside by the Court of first instance on the application of the mortgagee, defendant No. 1. But in appeal the District Judge on the 16th December 1910 set aside that order and confirmed the sale, holding that the interest of defendant No 1 was not affected by the sale as the landlord had recognised the defendant No. 2 as the tenant, and neither defendant No. 1 nor defendant No. 2 are affected. He advised the defendant No. 1 that he could resist the possession of the plaintiff as not being the holder from defendant No. 4.

(2.) The contention in the lower Courts and in appeal was that the suit was barred by the doctrine of res judicata and that there had been recognition by the landlord. It would be difficult to say that the finding of fact by the learned Judge in the miscellaneous proceeding, dated the 19th December 1910, in which he says it is proved that Dino Palk has been recognised by the landlord as tenant of the laud, can in itself operate as res judicata on the question of fact; and it is perfectly obvious that the Judges who have successively decided this case were and we ourselves are still fully competent to decide that question of fact for ourselves, and indeed it is one branch of this appeal before us that there was legal recognition. What the Judge in that case held as a matter of law was that defendants Nos. 1 and 2 had no locus standi to contest the sale, and that, herefore, the sale must be restored without prejudice to their interest; arid upon this it is urged before us to-day that although there is no res judicata there may be estoppel, inasmuch as the plaintiff got the advantage of having his sale confirmed on the footing that defendant No. 2 had been recognised by the landlord and he, therefore, cannot now be heard to deny the fact upon which he obtained the advantage in the execution Court. To begin with it cannot be said that the, advantage, if any, obtained by the plaintiff was obtained on any other ground than that stated by the learned Judge to which we have just referred, namely, that the defendants Nos. 1 and 2 had no locus standi and that reduced the question of estoppel to exactly the same principles as the question of res judicata. But there is a further objection to any estoppel, and that is the finding of fact by the learned Munsif, which has not been set aside by the Judge and with which we entirely agree, that the plaintiff got no advantage whatever from the judgment of the learned District Judge. Therefore there is no reason why he should not now seek to establish his rights through the medium of a regular suit.

(3.) We are, therefore, left with the question whether the wording of the deposit chalan Exhibit 2 is such as to give the landlord notice that Dino Paik was paying the money under Section 170(3), Bengal Tenancy Act, as his in possession by purchase, and that the landlord withdrew the money upon that footing. We think that the statement in this chalan is altogether insufficient for that purpose, and we may note that the applications upon which this deposit was based had been kept back from the cognizance of the Courts. The order sheet, which has not been printed in the appeal before us but which we have looked at from the record, appears to show that defendants Nos. 1 and 2, as mortgagee and transferee of the land respectively, both applied to make the deposit on behalf of the judgment-debtor, and the question before the Munsif was not the question under Section 170(3) because if it had been, she would have been bound to accept the deposit offered by the encumbrancer if the defendant No. 2 was the real tenant, but the question, which of these parsons should be allowed to act on behalf of the judgment-debtor, and he decided" that the purchaser was the proper person to act on behalf of the judgment-debtor and accept, the deposit not under Section 170 as the Munsif erroneously supposed, for in the circumstances of the case there can be no such deposit under Section 170, but as deposit made on behalf of the judgment- debtor; and it must be taken that the landlord took away the money on that footing and did not in any way recognise that the words used by Dino Paik describing himself as the person in possession by purchase indicated that there had been a valid transfer of the holding.