Patna High Court
Bhadai Sahu vs Shaikh Manowar Ali And Anr. And Saiyid ... on 20 June, 1919
Equivalent citations: 52IND. CAS.125, AIR 1920 PATNA 735
JUDGMENT Mullick, J.
1. This is a litigation which has lasted six years. It appears that on the 25th September 1913 the plaintiffs brought a suit against three sets of defendants to set aside the sale of a non-transferable occupancy holding held by the defendants second party, namely, defendants Nos. 3 and 4.
2. The facts appear to be that defendant third party, Mr. Forbes, who is the landlord of the holding, brought a suit against the recorded tenants defendants Nos. 3 and 4 for rent, obtained an ex parte decree, and in execution brought the holding to sale. The purchaser at the auction was defendant No. 1 Bhadai. The sale was confirmed in November 1910.
3. The plaintiffs claim to be private purchasers of about four acres out of the holding and allege that the defendant No. 2 is a private purchaser of the rest of the holding.
4. They attacked the sale on the ground that there was fraud between the decree-holder and the defendant No. 2 in the matter of the suit, the decree and the sale. The Munsif who tried the suit in the first instance decided all the material issues in favour of the plaintiffs, but he came to the conclusion that the suit was not maintainable because the plaintiffs had not made an application under Order XXI, Rule 90 of the Civil Procedure Code to set aside the sale, and that they could not be permitted to institute a separate suit for that purpose after confirmation.
5. The plaintiffs thereupon appealed, and the Subordinate Judge, disagreeing with the finding of the Munsif upon the point of maintainability, set aside the whole decree and remanded the suit for trial. At the same time he added two new issues, which ran as follows:
(1) Whether the defendant No. 1 is a benamidar of the defendant No. 2: if not whether he is privy to the fraud by which the sale was brought about? and (2) On what terms the sale should be set aside, if it be set aside at all?
6. The case then went back to the Munsif, who came to the conclusion that the defendant No. 1 was in fast the benamidar of the defendant No. 2. He held that in consequence of this finding it was not necessary to consider whether the defendant No. 1 was privy to the fraud by which the sale was brought about. The Munsif in the result decreed the suit against the defendants.
7. There was again an appeal and the Subordinate Judge affirmed the finding of the Munsif on the point of benami and dismissed the appeal.
8. The defendant No. 1 now comes on second appeal to us. The first point taken by the learned Vakil for the appellant is that under Order XXI, Rule 92, of the Civil Procedure Code, no suit is maintainable after confirmation.
9. Now this point would perhaps have been a good point if the previous proceedings in this suit had not stood in the way of the appellant.
10. It appears that the order of remand made by the Subordinate Judge on the 28th April 1915 was made under Order XLI, Rule 23, and also under Rule 25 of the Civil Procedure Code. It is said that the order could not have been an order under Rule 23, because the suit was not disposed of upon a preliminary point and because the Munsif had in fact determined and recorded findings upon all the issues in the suit.
11. In my opinion this argument is not well founded. The findings upon all the other issues except the issue as to maintainability were in favour of the plaintiffs, and the sole reason for dismissing the suit was that in the opinion of the Court the suit was not maintainable by reason of the provisions of Order XXI, Rule 92.
12. It is quite clear in these circumstances that the suit was disposed of upon a preliminary point. The contention that a Court cannot be said to "dispose of a suit upon a preliminary point if it takes the trouble to decide the other issues framed in the suit, cannot be entertained. Then it is said that inasmuch as there was an order framing two new issues and remanding the suit for trial of those issues, there was an order under Rule 25, and the addition of such an order makes the whole order of remand one under Section 151 of the Civil Procedure Code. The argument is that as it is not an order wholly and exclusively under Rule 523 or Rule 25 and is a composite order under the provisions of both rules, it must be an order made under the inherent powers of the Court. This argument too is one with which I have no sympathy. There is no reason why there cannot at one and the same time be an order under Rules 23 and 25. The two orders, although made upon the same piece of paper, are in effect quite separate, and the party affected is competent to pursue the remedy by way of appeal provided by the Code in respect of each.
13. With regard to the order under Rule 23, it is open to him either to appeal against the whole decree or to appeal against the order of remand only under Order XLIII.
14. With regard to the order under Rule 25, he has no right of appeal against the order itself but he can attack the remand in second appeal against the final decree in the case: so that I see no difficulty in regarding the order of the Subordinate Judge in this case, so far as the preliminary point is concerned, as an order under Rule 23.
15. Now it was open to the defendants to appeal against that order, or against the decree. They did neither. They might also, if they had succeeded in defeating the plaintiffs upon the preliminary point, have got the Court to set aside the order so far as it related to the trial of the two additional issues: but that is not the immediate point before us. The point immediately before us is whether the omission to appeal against the decision upon the preliminary point now renders the defendants incompetent to attack the decision of the Subordinate Judge regarding that point in second appeal. In my opinion clearly it does. The decision of the Subordinate Judge, therefore, holding that a suit was maintainable is, in my opinion, now final.
16. The next point raised by the learned Vakil is that the suit is barred by limitation. It is pointed out that in the plaint there is an admission by the plaintiffs that they came to know of the sale more than a year before the suit was actually instituted.
17. Therefore, it is said that under Article 12 of Schedule I of the Limitation Act the suit is barred by time.
18. Now the difficulty in the way of the defendants on this point is, that the plea as to limitation was never taken in this form either in the Court of the Munsif or in the Court of the two Subordinate Judges who have dealt with the case. It is now taken for the first time in second appeal.
19. Now our rule is that if a point of law requires a finding of fact for its determination, we cannot allow it to be entertained in second appeal in this Court.
20. The admission relied upon in the plaint has to be construed and is always subject to be rebutted by evidence in the suit itself. There is no finding on any evidence adduced at the trial which would go to show affirmatively that all the plaintiffs did come to know of the sale more than twelve months before the institution of the suit.
21. I do not think in these circumstances that we should remand the suit for the taking of additional evidence upon this point. It is to be noticed that the only ground of limitation upon which the suit was resisted was that it came under the special limitation provided by the Bengal Tenancy Act.
22. With regard to this point the finding of fact in the Courts below was that the dispossession was not made by the landlord. It is now attempted to show that the defendant No. 1 was put into possession in furtherance of a conspiracy by the landlord and that, therefore, the dispossession was by the landlord himself.
23. The rule in this Court is that a Court will not favour these allegations of constructive dispossession, and it must be shown on clear evidence that the landlord himself was the party who dispossessed the tenant.
24. The decisions which have proceeded on what has been called the landlords having a hand in the ouster cannot, in my opinion, be followed in the present case.
25. Therefore, the point of limitation also fails. But the third ground taken by the learned Vakil for the appellant seems to me one which should succeed. There is no finding by any Court that the defendant No. 2 had any connection with the fraud by the decree-holder. The last Court of fact has indeed found that the decree was a valid decree but that the sale was irregular and fraudulent, but I cannot discover a single sentence in any of the judgments to the effect that the defendant No. 2 had anything to do with the decree-holder in bringing the properties to sale.
26. The learned Vakil for the respondents contends that it was accepted in the Court' of the Subordinate Judge, who first dealt with the case and who framed the additional issues, that the defendant No. 2 was in conspiracy with the decree-holder and, therefore, all that it was necessary to determine for the ultimate decision of the suit was whether or not the defendant No. 1 was entitled to set up the plea of being a bona fide purchaser for value.
27. I am unable to see upon what evidence such a contention can be supported. There is nothing to show that there was any admission by the defendants that the defendant No. 2 was in conspiracy and concert with the decree-holder. The omission of the defendant No. 2 to enter appearance in the original suit does not dispose of the matter. It was incumbent upon the plaintiffs to establish an affirmative case that notwithstanding the benami purchase by the defendant No. 1 on behalf of the defendant No. 2, the sale could be set aside against the defendant No. 2. The defendant No. 1 was throughout contending that the sale could not be set aside and, there-fore, the finding that he was a benamidar did not dispose of the substantial question whether or not the principal and the real purchaser was a bona fide purchaser for value.
28. We must assume, therefore, in the absence of evidence that there was no fraud on the part of the defendant No. 2.
29. The learned Vakil for the respondents, however, takes another ground for the purpose of attacking the sale. He contends that after the decree one of the two judgment-debtors died and the sale was held without any issue of process upon his heirs. It is contended that the sale is, therefore, a nullity.
30. Now the sale can only be a nullify if it is held without jurisdiction. Reliance is placed upon the case of Khiarajmal v. Daim 32 C. 296 : 1 C.L.J. 581 : 32 I.A. 23 : 8 Sar. P.C.J. 1734 : 9 C.W.N. 201 (P.C.) : 2 A.L.J. 71 : 7 Bom. L.R. 1. But that case does not really assist the respondents. In that case the property of two persons who were not represented in the trial was sold in execution; and it was held that the omission to implead them as defendants rendered the decree void and without jurisdiction and that the subsequent sale was bad because the decree itself was bad.
31. Their Lordships of the Privy Council distinguished the case of Malkarjun v. Narhari 25 B. 337 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 10 M.L.J. 368 : 7 Sar. P.C. J. 739 : 27 I.A. 216 (P.C.), on the ground that in the latter case the decree was a perfectly good decree and the omission to bring upon the record the true heir of the deceased judgment-debtor was only an irregularity which could not vitiate the sale held with jurisdiction.
32. The principle of Khiarajmal's case 32 C. 296 : 1 C.L.J. 581 : 32 I. A 23 : 8 Sar. P.C.J. 1734 : 9 C.W.N. 201 (P.C.): 2 A.L.J. 71 : 7 Bom. L.R. 1 above referred to has been followed in this Court in the case of Syed Muhammad Rafi v. Syed Muhammad Askari 37 Ind. Cas. 433 : 1 P.L.J. 261 : 3 F.L.W. 390.
33. It is impossible, therefore, to say that the sale in the case now before us was a nullity. The point, moreover, was never taken at any stage, and it is possible that if it had been taken, the defendants might have been able to show that the sole judgment debtor against whom the execution proceedings were continued was entitled to represent the heirs of the deceased.
34. The result, therefore, is that the appeal succeeds and the decree of the lower Appellate Court is set aside with costs in all Courts. The suit of the plaintiffs will be dismissed.
Jwala Prasad, J.
35. I agree.