CHITTARANJAN SEN GUPTA Vs. SAMARENDRA NATH ROY

JUDGEMENT

(1.) This appeal has been before this Court on a previous occasion, but if the appellant's contention is right, the proceedings so far had by respondent 1 have all been misconceived and he must begin anew in another forum.

(2.) The facts have now been finally found by the Courts below and are as follows: On 17th November 1944, one Sarat Chandra Sen, residing as a tenant at 6 Rajabagan Lane, Cossipore, Calcutta, applied for adjudication of himself as an insolvent. He had experience in the line, for it appears from the application that he had been adjudged an insolvent once before, when too he had applied himself. The present application was allowed on 6 April 1945. In his application Sarat did not mention his tenancy of 6 Rajabagan Lane as one of his assets. Shortly after his adjudication, however, three of his creditors pointed out the property to the Official Receiver and asked him to bring it to sale. The Receiver complied and a sale was held on 18 May 1945, when the tenancy was purchased by one Samarendra Mohan Roy who is respondent 1, in this appeal. When, thereafter, Sarat was asked by the Receiver to deliver possession of the premises to Samarendra, both he and his son Chittaranjan Sen, who is the appellant before me, put forward a case that the old tenancy of Sarat had been terminated long ago and that the present tenant was Chittaranjan, who was in possession of the premises in his own right. Thereupon, Samarendra made an application to the Insolvency Court against both father and son for a direction to them to deliver possession of the premises to him. It is out of that application that the present appeal has arisen.

(3.) The trial Court held that no question as to whether Chittaranjan was in possession of the house arose, that the real question was whether Sarat was in possession and on the finding that he was, it held that the purchaser was entitled to obtain delivery of possession through Court after evicting Sarat. Against that order, Chittaranjan appealed and the appellate Court pointed out that the purchaser's application for possession was against both Sarat and Chittaranjan, but by its order the trial Court had not disposed of the latter. The question at issue between him and the purchaser, it was further pointed out, was whether he and not Sarat was in possession, and that in his independent right, and the case was remanded to the trial Court for decision of this issue. There was next a further appeal to this Court by Samarendra and in that appeal it was held by Biswas J. that although Chittaranjan had not adduced proper evidence in support of his claim, he had raised a question of title which he might yet be given an opportunity to establish as a measure of indulgence. The learned Judge would not, however, uphold the order of remand to the trial Court and made what he called a limited order of remand to the lower appellate Court, directing that Court to admit some further evidence of a specified kind and then decide the question of title, i.e., the question: Whether the disputed property did vest in the Official Receiver in due course of law at the date of the gale as being the property of the insolvent or after the application for insolvency, the leasehold came to be bold by the respondent on determination of the insolvent's lease. No order was passed on an application in the alternative Under Section 115, Civil P.C.