RAJA KOER Vs. GANGA SINGH

JUDGEMENT

(1.) THIS is an appeal on behalf of some of the defendants in an action for declaration of title to, and confirmation of, possession of immoveable property. The subject matter of the dispute is a two annas eight pies Kancha share in Mauza Gamharia, which admittedly belonged at one time to a person named Gangadhar Lal. The appellants as well as the respondents claim to have derived title from him and the question is whose title ought to prevail. It appears that on the 25 January 1874, Gangadhar mortgaged the property to one Hira Singh, who took the bond for himself and his brothers. On the 30 July 1883, the right, title and interest of Gangadhar was purchased by Dhurma Singh from whom the respondents have derived title. On the 8 July 1899, the Collector sold the same property, under the Public Demands Recovery Act, in execution of a certificate issued against the heirs of Gangadhar, and the appellants claim title through the purchaser at that sale. Now it is well settled by a series of decisions of this Court, beginning with the case of Shekaat Hosain V/s. Sasi Kar 19 C. 783 and ending with the case of Rupram Namasudra V/s. Iswar Namasudra 6 C.W.N. 302, that the effect of a sale, under the Public Demands Recovery Act, is to pass to the purchaser merely the right, title and interest of the persons named as the judgment-debtors in the Certificate. An attempt has, however, been made before us to challenge the correctness of these decisions. But the principle upon which they are based is firmly settled, and no attempt at this stage to unsettle the law, as laid down in a long series of decisions of this Court, can possibly succeed. It is further to be remembered that this view has been affirmed by the Judicial Committee Mahomed Abdul Hai V/s. Gujraj Sahai 20 C. 826 (P.C.), Baijnath Sahai V/s. Ramgut Singh 23 C. 775 (P.C.), in relation to the provisions of the since repealed Act of 1880, and, though that Act has now been replaced by the Act of 1895, the Legislature has not thought it fit to alter the law so far as the present question is concerned. The provisions of the Public Demands Recovery Act clearly show that the effect of a sale under that Act is the same as the effect of a sale under the Civil Procedure Code, and consequently all that passed to the purchaser in this case is the right, title and interest of the persons named as the judgment-debtors. The learned Vakil for the appellants, however, suggested that as neither the purchaser at the sale of 1883, nor the persons who subsequently derived title from him, took the precaution of registering their names in the Collectorate, the respondents are estopped, by reason of this omission, from setting up their prior title. But the case of Rupram Namasudra V/s. Iswar Namasudra 6 C.W.N. 302, which has been subsequently followed by this Court in Afraz Molla v. Kulsumunnessa Bibi 4 C.L.J. 68, shows that the doctrine of representation and the principle of estoppel, upon which the decision of the majority of the Judges in the case of Bishambhur Haldar V/s. Bonomali Haldar 26 C. 414, is based, are not to be extended to cases of sales under the Public Demands Recovery Act. We must observe further that in the case before us, no attempt was made to raise the question of estoppel at any earlier stage of the proceedings. It was undoubtedly not expressly raised in the written statements of the defendants, no trace of it is to be found in the issues, and the judgments of both the Courts show that there are no materials on the record upon which any question of estoppel can possibly be decided. We must, therefore, hold that as at the time when the Certificate sale took place the persons named in the Certificate as the judgment-debtors had no subsisting interest in the property, the purchaser at the Certificate sale acquired no title whatsoever and, consequently, the appellants also derived no title from their vendor. It was in the end faintly suggested that there was an alternative title on the basis of which the appellants ought to succeed. THIS alternative title was sought to be based upon an alleged payment of certain charges on the property. The Court of First Instance, however, found that the existence and the reality of these charges were not established. It is, therefore, clear that the conclusion at which the Courts below arrived is correct, and cannot be successfully challenged.

(2.) THE appeal fails and must be dismissed with costs.