PROMOTHA NATH MAZUMDAR Vs. NAGENDRA NATH MAZUMDAR

JUDGEMENT

(1.) In my opinion, this appeal must fail. There are three points that are taken in this appeal. The defendant-appellant is a purchaser of the land in suit in the year 1912 at an auction-sale held in pursuance of a money-decree. The plaintiff is a person whose mother got a decree in 1912 upon a mortgage of 1909 and in 1914 bought the said land at an auction-sale under the mortgage-decree. The mortgage-bond comprised several items of property. It was executed by one Arnbica Kanta Majumdar for Rs. 500 and it comprised three lots of property specified in different schedules. The plaintiff when he brought his suit claimed certain land describing it in a particular way and there can be no doubt, if one looks simply to the description in the plaint, that the defendant is in possession of the land which the plaintiff is claiming.

(2.) The first question which we have to consider is whether it is properly shown by the plaintiff's title-deed that the land which he has become entitled to is the land of the plaintiff or is some other land, may be, not identifiable by the evidence in the case. The plaintiff's title- deed is, of court, his sale-certificate and the plaintiff obtained by that sale-certificate a title to the property sold to him such as the mortgagor had at the date of the mortgage of 1909. Now, the sale-certificate describes the property as Mahal Chak Malanchi bearing No. 403 in the Touzi of the Rajehahi Collectorate. It goes on to say that it is situated within Police Station and Sub-Registry Lalpur within the Nator Sub-Division of the Rajshahi District. It further says that the share of the sadar jamais Rs. 3 per annum.

(3.) It is said on behalf of the appellant that the land in question as claimed in the plaint is not known as Chak Malanchi. The lard in question is part of the property comprised in No. 403 but it is said that what the plaintiff has to make out in order to succeed is really this that the mortgagor's share in Mouza Harirampore within Pergana Malanchi has passed to him. The learned lower Appellate Court seeing that the certificate was of a sale in a mortgage-decree has referred back to the mortgage-bond and referring back to the mortgage-bond, it finds that in the sale-certificate the description is copied varbatim from the first schedule which describes the property mortgaged. There can be no doubt, therefore, according to the lower Appellate Court, that the description in the mortgage-deed is evidence which shows what was meant by the document of title, namely, the sale-certificate. If there was any question of using the mortgage-deed in order to construe the sale-certificate and explain any ambiguity in the sale-certificate or anything of that sort, no doubt to have recourse to it for that purpose would be erroneous. But what we are concerned with is not the construction of the sale- certificate. We are concerned to find whether we can identify the property described--it may be not very well, it may be inaccurate--by the language used in the sale-certificate. For that purpose, I have no doubt at all that extrinsic evidence is competent. In support of the appellant's contention, the only case that has been cited to us by his learned Advocate is the case of Ramabhadra Naidu V/s. Kadiriyasami Naicker 63 Ind. Cas. 708 : 44 M. 483 : (1921) M.W.N. 374 : 14 L.W. 125 : U.P.L.R. (P.C.) 83 : 30 M.L.T. 34 : 24 Bom. L.R. 692 : A.I.R. 1921 P.C. 252 : 48 I.A. 155 (P.C.), where the Privy Council has pointed out that certificates of sales are documents of title which ought not to be lightly regarded or loosely construed. But this was said in a case where the Privy Council reversed a decision which had cut down the language of a sale-certificate by reference to the mortgage-deed and in that way, had acted contrary to law. The finding of fact of the lower Appellate Court in the present case is that a reference to the mortgage deed clearly shows that a certain share in Mouza, Harirampur within Pergana Malanchi is the first of the mortgaged subjects. That being so, the lower Appellate Court was entitled to come to the conclusion that the plaintiff had succeeded in identifying the property comprised in the sale-certificate with the property claimed in the plaint. Now, it is conceded that the defendant is in possession of the property claimed in the plaint. That being so, we are not further concerned with the defendant's title-deed except in so far as the defendant might be able to say that his title-deed had priority over the plaintiffs. Prima facie, there is no question of that kind because the defendant's predecessor purchased in 1912 in execution of a money-decree and got only the right, title and interest of the judgment-debtor which he then had whereas the plaintiff's predecessor purchased the right, title and interest which the mortgagor had in 1909. That being so, the first point seems to me to fail.