CHAITANYA DAS BANERJEE Vs. RANJIT PAL CHOWDHURY

JUDGEMENT

(1.) The facts which are not in dispute now are these : One Haripada Ghose, husband of defendant 2, held a mokarari tenure under defendant 1. He sold it to defendant 3 by a kobala on 21 Agrahayan 1329 B. S. corresponding to 15 November 1922. The kobala was registered on 9 December 1922, and registration fee was paid in the Registration Office. In the Record of Eights which was finally published at about this time, the name of Haripada Ghose appeared as a tenant in respect of this tenure. In 1923 defendant 1 instituted a suit against Haripada Ghose for recovery of arrears of rent of this tenure for the years 1326.1329 B. S. and obtained a decree on 9 July 1923. In the same year he made an application under Section 105, Ben. Ten. Act, for settlement of fair and equitable rent of this tenure impleading Haripada as the only defendant in the proceeding. On 21 December 1923 defendant 1 put the rent decree into execution. On 29 January 1924 he made an application to the Revenue Officer for substituting defendant 3 in place of Haripada in the proceeding under S.105 on the ground that defendant 3 was in possession of the tenancy by purchase from Haripada. This application was allowed. On the same day the proceeding under Section 105 was compromised between defendant 1 and defendant 3.

(2.) By this compromise, the tenancy was admitted to be mokarari and defendant 1 gave up his claim for settlement of fair and equitable rent. On 21 June 1924 the application for execution of the rent decree was allowed to be struck off. Thereafter Haripada died leaving defendant 2 as his heir. In May 1926 defendant 1 made another application for execution of the rent decree against defendant 2 first by attachment and sale of her moveable properties and then by attachment and sale of the defaulting tenure. This execution petition contained a statement that the defaulting tenure belonged to defendant % the judgment-debtor, and was verified by the agent of defendant 1 to be true. The sale proclamation under Section 163 (2) (a), Ben. Ten. Act, was issued and published by the executing Court in due time. In the sale proclamation, the defaulting tenure was described as a tenure standing in the name of Dwarika Nath Ghose, the predecessor in interest of the judgment-debtor. The tenure was sold by the executing Court and was purchased by the plaintiff for Rs. 282 on 10 August 1926. The sale was confirmed on 21 September 1926. The plaintiff obtained the sale certificate and in execution of the sale certificate obtained symbolical possession through Court. Defendant 1 then began to realize rent from the plaintiff although he had already recognized defendant 3 as the tenant of the tenure in the proceeding under Section 105 referred to above. After taking symbolical possession, the plaintiff found that some khas lands included within this tenure were in possession of one Indu Ghosh. The latter refused to give up possession. The plaintiff thereupon instituted a suit in the year 1930 to recover possession of these lands from him. This suit however was dismissed on the ground that the plaintiff had acquired no title to the tenure by his auction. purchase, as the sale was, in effect, a sale not under the Bengal Tenancy Act but only a money sale and the judgment-debtor had no saleable interest in the tenure, By this time defendant 1 had realized Rs. 134-8-6 as rent of the tenure from the plaintiff. After the dismissal of the Suit brought by him against Indu Ghose, the plaintiff raised the present suit in the Court of the Munsif at Krishnagar on 1 February 1934 for the refund of the purchase money (Rupees 282) and the rent paid by him to defendant 1 (Rs. 134-8.6) together with interests (Rs. 183-7-6) in all Rs. 600 or in the alternative for recovery of possession of the tenure from defendant 3 on declaration of his title to the same by auction purchase.

(3.) The trial Court passed a decree for Rs. 600 against defendant 1 but dismissed the suit) against the other defendants. Defendant 1 appealed to the lower Appellate Court. The learned Judge who heard the appeal has set aside the decree of the trial Court and has dismissed the suit against defendant 1 also. Hence this second appeal by the plaintiff. The first point urged by the learned advocate for the appellant in support of this appeal is that on the facts which are not in dispute now the plaintiff is entitled to recover the amount claimed from defendant 1 as money paid for a consideration which has subsequently failed. In support of this contention, the learned advocate for the appellant relied upon certain observations of their Lordships of the Judicial Committee of the Privy Council in Dorab Ally Khan V/s. Abdool Azeez (1880) 5 IA 116 at p. 118.