SM BIRAJMOHINI DASSI Vs. SMSARALA DEVI CHOWDHURANI

JUDGEMENT

(1.) Sarala Devi Chowdhurani, the respondent, commenced on 17 March 1930 the suit in which this appeal arises in the Court of the Additional Subordinate Judge, 24 Parganas, for establishing her rights to the present possession of the house at 54 Ultadanga Main Road within the Municipal boundary of Calcutta. The suit purports to be one under the provisions of 0. 21, Rule 103, Civil P.C. That suit has been decreed by the Subordinate Judge. Hence the present appeal by the representative of the defendant to that suit, one Benode Behari Biswas, who died during the pendency of the suit.

(2.) The allegation on which the plaintiff founds her title to the said premises, 54 Ultadanga Main Road, may be briefly stated thus: The property in question was originally held by Surendra Nath Dutt, Purendra Nath Dutt and Gokil Chandra Dutt who were members of the firm of P.N. Dutt and Company which at one time carried on an extensive business. The said Dutts mortgaged the property in question to Dr. Bipin Behari Ghose, a well-known physician of Calcutta on 4 October 1920 taking a loan of Rs. 8,000 from the said doctor and hypothecating the said premises by a registered deed of mortgage in his favour. Dr. Bipin Behari Ghose, on receipt of proper consideration, assigned the said mortgage bond in favour of the plaintiff respondent Sarala Devi Chowdhurani. To the said deed of assignment the Dutts were made parties and by the said deed a further charge was created in respect of another property belonging to the Dutts, namely, 6 Kirty Mitter Lane which lies within the original jurisdiction of the High Court of Calcutta. The Dutts having failed to pay the dues on the mortgage security the plaintiff brought the suit on the original side of the Court, and obtained a preliminary mortgage decree against the Dutts on 3 March 1924. The judgment-debtor not having paid the money within the period of grace, a final decree was passed in favour of the plaintiff, Sarala, on 14 December 1925. In execution of the said decree the plaintiff purchased the property at the Registrar's sale and thereafter obtained the sale certificate.

(3.) The plaintiff applied to be put in possession and proceeding was taken under the provisions of Order 21, Rule 95, Civil P.C. Then on 27 April 1927 Costello, J., in that proceeding for delivery of possession directed that the premises in question be delivered to the plaintiff under the provisions of Order 21, Rule 95, Civil P.C. And it was further ordered that certified copy of the order together with a copy of the sale certificate and a certificate from this Court that possession of the said property has not been obtained within the jurisdiction of this Court, be transmitted by the Registrar of this Court to the District Judge's Court of 24-Parganas for execution: see p. 102, para. II of the paper-book. The matter accordingly was sent to the Court of the Subordinate Judge who dealt with the proceeding taken under the provisions of Order 21, Rule 95, Civil P.C. After dealing with certain preliminary objections on the question of jurisdiction the Subordinate Judge of 24-Parganas came to the conclusion that although Benode, the husband of the appellant, could not establish his claim to the ownership of the building he (the learned Judge) was inclined to accept Surendra's version that it was the Dutts who paid for the construction of the building and that Benode came to occupy the house with the permission of the judgment-debtor. But the Subordinate Judge dismissed the application of the plaintiff to be given possession on the ground that there was a sort of contract or agreement in pursuance of which Benode paid Rs. 55 as the earnest money for the purchase of the property and he held that it cannot be said that there was no enforceable right on the part of Benode in the premises in question. He accordingly refused the application of the plaintiff. The result was that the present suit had to be instituted in accordance with the provisions of Order 21, Rule 103, Civil P.C., as has been already stated.