Patna High Court
Badri Narain Singh vs Bageshwari Prasad Dubey And Ors. on 21 March, 1950
Equivalent citations: AIR1951PAT274, AIR 1951 PATNA 274
JUDGMENT Reuben, J.
1. This is an appeal against a decree of the Additional Subordinate Judge of Gaya.
2. In village Kusahan Pipra there was a Tauzi No. 2578, comprising several separate accounts. We are concerned here with a share of two annas recorded in separate account No. 7 which formerly belonged to one Gajraj Singh, and on his death passed to his widow Pachhlari Kuer. It is common ground that on bar death the property passed to Fateh Bahadur and Tika Ram, sons of Gajraj's divided cousin Uttim Singh, whose other sons Bishwanath and Bhondu were then dead. In the year 1923, a certificate under the Bihar and Orissa Public Demands Recovery Act, 1914, was filed for the recovery of arrears of cess due in respect of separate account No. 7. In execution of this certificate, the share was sold on 29-10-1923 and was purchased by Harbans Prasad Dubey, the original plaintiff in the suit. By this time Fateh Bahadur and Tika Bam were dead. Three certificate-debtors were named in the certificate, Mathura and Matukdhari, sons of Fateh Bahadur, and Parichhit, son of Bishwanath. The sale was confirmed in due course and Harbans took delivery of possession on 23-8-1924 and got himself recorded as proprietor of this share on 6-5-1925. At that time, a batwara proceeding was pending in respect of Tauzi No. 2578. Harbans intervened, was allotted a new Tauzi No. 11210, in respect of the two anna interest purchased by him, and got delivery of possession over it on 2-5-1928. In the meantime, Mortgage Suit No. 66 of 1927 had been instituted in respect of the two annas share on the foot of a simple mortgage bond executed by Fateh Bahadur and Tika Bam. For some reason, Jwala Prasad Dubey, father of Harbans, was impleaded in the suit instead of Harbans, and although a decree was obtained against him in the Court of first instance, the suit was dismissed against him by the High Court in appeal on the ground that Harbans was the real purchaser in the certificate sale. On 8-1-1987, Tauzi No. 11210 was sold in execution of the decree in mortgage Suit No. 66 of 1927 and was purchased by Mahabir Prasad, defendant l in the present suit, from whom the appellant before us derives his title, and the purchaser obtained delivery of possession in June 1937. The present suit was brought for a declaration that Harbans Dubey's title was unaffected by the mortgage, and for confirmation of his possession over the suit property, and in the alternative for recovery of possession.
3. The defence taken was that Harbans purchased the property as benamidar of the certificate-debtors and that the reel owners of the property were fully represented in the mortgage suit; secondly, that even conceding that Harbans was the real purchaser be acquired merely the right, title and interest of the certificate debtors.
4. The learned Subordinate Judge has rejected the first contention but has accepted the second. As regards possession he has found that Harbans was dispossessed. Relying on Ganga Prasad Singh v. Mt. Ganeshi Kuer, A.I.R. (31) 1944 pat. 119 : (22 Pat. 761), he has held that the plaintiffs are entitled to recover possession of the entire property.
5. In appeal, the issue of benami was not seriously pressed before us, but it was urged that the plaintiffs are entitled to recover possession only of the portion of the property representing the right, title and interest of the certificate-debtors. On the other side, it was urged, firstly that the question of the passing of only a share by the certificate sale should not have been allowed to be raised, secondly that the certificate-debtors represented the entire interest and so the entire interest passed, thirdly that the batwara proceedings cannot be reopened, and that if by the batwara a larger patti has been given to Harbans than his real interest warrants this cannot be helped; the mortgagors must seek their remedy against the portion allotted in the batwara to the proprietors who are entitled to the remaining fraction of the two anna share. Before the Subordinate Judge the plaintiff also set up the case that Fateh Bahadur and Tika Bam threw the two-annas share into the joint family stock, and that in a subsequent partition of the joint family property this two-anna share was allotted to Matukdhari, Mathura and Parichhit. The Subordinate Judge disbelieved the story of partition. According to him the descendants of Uttim are still joint, and Fateh Bahadur and Tika Earn did not throw the two anna share into the joint family stock; this property therefore descended to their sons and grandsons, and Partichhit had no share in it at all. This finding has not been challenged before us.
6. Thus, four points arise for consideration ; (1) Were the defendants entitled to contend that only a fraction of two annas passed by the certificate sale? (2) Can the batwara proceedings be reopened ? (8) Did the certificate-debtors represent the entire interest ? and (4) Are the plaintiffs entitled to recover possession of the whole two annas even though their interest is confined to a fraction ?
7. As regards the first point, it is urged that on the plaint and the written statement originally filed in the suit the question does not arise. This is true, but the question is raised by an amendment of the written statement which was allowed by the Subordinate Judge in April 1946. It was within the discretion of the Subordinate Judge to allow the amendment, and I am unable to say that he has not exercised his discretion in a judicial manner.
8. Coming to the second point, there might have been some force in it if the patti allotted to Harbans in the batwara had been intended to represent a smaller share, corresponding to the interest of the certificate-debtors. In such a case, apart from considerations such as fraud or collusion, it may not have been open to the civil Court to go behind the batwara. Here, however, the patti was admittedly intended to represent the whole two-annas interest. There can be no question, therefore, of looking for substituted security elsewhere.
9. For the third point much stress has been laid on the fact that Harbans Dubey was allowed apparently without question to get his name mutated in Register D in respect of the two-anna share, and that in the batwara proceedings, in the presence of the mortgagee Lal Narayan Singh, he was similarly allowed without question to get a patti corresponding to this share. These facts do not mean anything more than that the mortgagee and the other Co-proprietors thought that Harbans by the purchase acquired the entire two anna interest. If, however, they were under a misconception and in fact Harbans only acquired a much smaller interest by the purchase, their conduct in not opposing the mutation and in not questioning the correctness of Harban's share in the batwara proceedings would not create an estoppel against them, and the question of representation is still open to investigation.
10. The position here is that Fateh Bahadur and Tika Ram inherited the property in equal shares when Pachhlari Kuer died. After them their shares would pass to their sons. The sons of Tika Ram, whose branch is still in existence, are not among the certificate debtors. Fateh Bahadur had four sons, of all whose branches are still in existence; of them only two sons, Mathura and Matukdhari, were named as certificate-debtors. As the property came to them from their father it would be ancestral property between them and their sons, of whom Mathura had three and Matukdhari four at the time of the certificate sale (vide p. 32, parts I and II of the Paper Book); their interest in Tauzi No. 11210 was therefore 16 x 1/2 x 1/4 x 1/4 annas=10 dams and 16 x 1/2 x1/4 1/5 annas=8 dams respectively. As I have already mentioned, the third certificate-debtor had no interest in the property. So, unless it can be held that the certificate debtors represented the entire interest the certificate sale wa3 operative to pass only an interest of 18 dams in the Tauzi.
11. It has been decided in several reported decisions that the principle of representation does not apply to the procedure of realising public demands by means of certificates (Vide Sheaat Hosain v. Sasi Kar, 19 Cal. 783, Mohammad Abdul Hai v. Gujraj Sahai, 20 Cal. 826 : (20 I.A. 70 P.C.) Rupram Namasudra v. Ishwar Namasudra, 6 C. W. N. 302 and Mt. Raja Kuer v. Ganga Singh, 13 C. W. N. 750. (1 I. C.197). In spite of this, we find that the Legislature in Section 26 (1), Bihar and Orissa Public Demands Recovery Act, 1914, enacted that by a certificate sale merely the right, title and interest of the certificate debtor passes even if the property itself is mentioned. It was pointed out in Baijnath Sahai v. Ramgut Singh, 23 I. A. 45: (23 Cal. 775 P. C.) that the provisions for the recovery of public demands by means of certificates are very stringent. They must therefore be strictly interpreted. Our attention hag been drawn to Kameshwar Singh v. Ishwari Pd. Singh 21 P. L. T. 5o3: (A. I. R. (27) 1940 Pat. 692) and Manrup Mandal v. Badri Sao, A. I. R. (29) 1912 Pat. 383: (202 I. 0. 62), but these are both case, of certificates for the recovery of arrears of rent, which are excluded by Section 26 (3) from the provisions of Section 26 (1) vide, Hari Prasad Singh v. Lai Behari Saran Singh 19 pat. 618: (A. I. R. (27) 1940 Pat. 326 F.B.). There is one reported case in which seemingly the principle of representation was applied to certificate procedure, Bindeshwari Prasad v. Shiva Datt, 19 P. L. T. 328: (A. I. R. (25) 1938 Pat. 315 F.B.) but that was on the special circumstances of the case (vide Hari Prasad Singh v. Lal Behari Saran Singh, (19 P. L. T. 618: A. I. R. (27) 1940 Pat. 328 F.B.) ante at pp. 635-63).
12. Here, on the facts and on the case set up by the plaintiff, the case of representation cannot stand. According to the plaintiff, the entire property was vested in three certificate-debtors, and it was apparently assumed in the certificate proceeding that this was so. There was no idea then that there were other persons also interested in it. Hence, the idea that the three certificate-debtors were there in a representative capacity cannot have been present. This distinguishes the case from Bindesnwari Prasad v. Shiva Dutt Singh, (19 P. L. T. 328: A. I. R. (26) 1938 pat. 315 F.B.) ante where the Certificate Officer investigated the point and held in the certificate proceedings that the certificate-debtor represented the entire interest.
13. For the last point, reliance is placed on Ganga Prasad Singh v. Mt. Ganeshi Kuar, A. I. R. (31) 1944 pat. 119: (22 Pat. 761). This is the authority which was also relied on by the learned Subordinate Judge. But the facts are different in one important particular. Here, although Harbans was in possession of the entire tauzi, his title extended only to a fraction of it; as regards the rest he was a trespasser. By the mortgage sale the title of Harbans remained unaffected, but the title to the remaining portion of the tauzi passed to the auction-purchaser. As regards this portion, the plaintiff is in the position of a trespasser seeking possession against a rightful owner, and cannot succeed. He cannot set up a title by adverse possession, because his adverse possession did not affect the mortgagees, the mortgage being a simple one Aditya Kumar Ray v. Dhirendra Nath, A. I. R. (37) 1950 Cal. 92: (53 C. W. N. 899). Nor can he rely on the fact that he acquired the title to the entire equity of redemption by prescription because, his adverse possession having started in 1924, his title by prescription became perfected during the pendency of the mortgage suit. On the principle laid down in Ganga Prasad Singh v. Mt. Ganeshi Kuer, (A. I. R. (31) 1944 pat. 119 : 22 Pat. 761) ante the plaintiff cannot be asked to redeem his share of the tauzi, and to this extent he is entitled to succeed.
14. In the result I would allow the appeal in part and modify the decree of the Subordinate Judge by directing that the plaintiff recover only a share of 18 dams in tauzi No. 11210. The parties will get costs proportionate to their success throughout.
Jamuar, J.
15. I agree.