Patna High Court
Bulkan Sah And Ors. vs Ganga Devi Nathani And Ors. on 7 October, 1963
Equivalent citations: AIR1964PAT214, AIR 1964 PATNA 214
JUDGMENT Tarkeshwar Nath, J.
1. Defendants 1 to 7 preferred First Appeal No. 504 of 1955 against the decree passed in Title Suit No. 13/61 of 1953/54 by the 2nd Additional Subordinate Judge, Muzaffarpur, but defendants 1 to 4 compromised (his appeal in this Court and thus this appeal has been argued only on behalf of defendants 5 to 7. The miscellaneous appeal and the application in revision were filed by Dhanraj Nathani (plaintiff 1) against the orders passed in the execution case and the detailed facts will be referred to later on. These three cases have been heard together and will be governed by this judgment.
2. Two plaintiffs, namely, Dhanraj Nathani and Mandira Mukherjee (widow of late Achindra Chandra Mukherjee instituted a suit out of which this appeal arises for ejectment of the defendants from the land and structure bearing holding Nos. 534, 535 and 536, within Circle No. 2, Ward No. 8, in the town of Muzaffarpur, and for a sum of Rs. 2741/5/- as damages till the institution of the suit besides future damages. Plaintiffs' case was that Jogendra Chandra Mukherjee was the owner of these three holdings commonly known as Andigola situate in Chatabazar Saraiyaganj, within the town of Muzaffarpur. Jogendra Chandra Mukherjee left two grand-sons, Sachindra Chandra Mukherjee and Achindra Chandra Mukherjee, and a grand-daughter Tamalika Mukherjee, Achindra Chandra Mukherjee was married to Mandira Mukherjee (Plaintiff 2). They were governed by Dayabhag School of Hindu Law and on the death of Jogendra Chandra Mukherjee, these holdings devolved on his two grand-sons In equal shares as their father had died before. Achindra Chandra Mukherjee died on 19-2-1948 and his widow (plaintiff 2) got the share of her husband. On 9-7-1951, she and Sachindra Chandra Mukherjee executed a deed of family arrangement whereby she got these holdings with structures thereon having an area of 1 bigha 6 kathas (specified in schedule 1 of the plaint). Defendants were monthly tenants of the premises in those holdings and they were paying monthly rent to plaintiff 2 and her predecessors-in-interest-at the following rate:
Defendants nos. 1 to 4 Rs. 47/-
Defendant no. 5 Rs. 42/8/-
Defendants nos. 6 and 7 Rs. 15/8/-
Rs. 105/-
Plaintiff 2 required a sum of Rs. 10,000 for erecting a temple In the name of her husband for the benefit of his soul and for performing 'sradh' of her deceased husband at Gaya and thus she leased out the entire Andigola having an area of 1 bigha 6 kalhas to plaintiff 1 on 18-9-1952 for building purposes on a monthly rent of Rs. 150/- and delivered possession of the same to the lessee with power to realise rent which had accrued due from the defendants. After the said lease, plaintiff 1 sent his men for making some constructions on the vacant portions which had an area of about 1 bigha, but the defendants in collusion with one another interfered with his possession resulting in a proceeding under Section 144 of the Code of Criminal Procedure. The Sub-Divisional Magistrate came to the conclusion in his order dated 18-11-1952 that the defendants had no title, but may were in possession and on that ground he made the preliminary order absolute against the plaintiffs. The defendants alleged in that proceeding that they had taken permanent settlement of the entire land from Jogendra Chandra Mukherjee about 40 to 45 years ago and had. Subsequently constructed at their cost buildings on those lands on payment of annual rent of Rs. 564, Rs. 510 and Rs. 186 respectively to plaintiff 2. They claimed to be in possession as permanent tenants and denied to have been monthly tenants of these premises.
They (defendant) further set up a case that plaintiff 2 had no right to execute the lease in favour of plaintiff 1 and the said deed was fraudulent and bogus. The plaintiffs alleged that they were entitled to eject the defendants as they had falsely set up a case of permanent tenancy in spite of the fact that they were at best licensees or tenants-at-will. They further averred that the defendants were only monthly tenants with regard to the premises, and the vacant lands were all along in possession of plaintiff 2 and her predecessors. According to them, the defendants forfeited their tenancy and they were liable to eviction. They sent a notice on 12-12-1952 to the defendants determining their tenancy, but the latter neither paid any heed to it nor they vacated the premises and the lands in question. In these circumstances, the plaintiffs instituted this suit in January 1953 for the reliefs already indicated. On 5-9-1955, plaintiffs, filed a petition for amendment of their plaint and they wanted to add in paragraph 9 of the plaint that the defendants had forfeited the tenancy "on account of denial of plaintiffs' title and non-payment of rent:"
3. Defendants 1 to 4 took several pleas, but it is not necessary to mention them as they have compromised this appeal with plaintiff 1. Their case was that they took settlement of 7 kathas of land for setting up an oil machine in tha year 1910 from Jogendra Chandra Mukherjee on a rent of Rs. 554. Defendant 5 filed a separate written statement and his case was that Achindra Chandra Mukherjee executed a will whereby he bequeathed his share in the entire estate, partly to plaintiff 2 and partly to Tamslika Banerjee and her sons. It was not correct to say that on the death of Achindra Chandra Mukherjee, plaintiff 2 alone succeeded to his estate. After the death of Achindra Chandra Mukherjee, there was a deed of family arrangement on 9-74951, but, according to it, the property in dispute was not allotted to the share of plaintiff 2 and, on the other hand, the said property was allotted to the share of Tamalika Banerjee and her sons. Plaintiff 2 had the right to enjoy its usufruct only during her lifetime by way of maintenance and she had no right either to alienate or encumber it. He alleged that the deed of lease in favour of plaintiff 1 was collusive, fraudulent and without consideration and the lessee did not acquire any title or interest in these holdings and, in fact, plaintiff 2 was not at all entitled to execute the said deed in respect of these holdings.
His further case was that he took lease of land measuring 8 kathas from Jogendra Chandra Mukherjee near about the year 1911 on an annual rent of Rs. 510 and the lease was initially for fixing machines etc. Later on, his business developed and he made improvements and there was an oil crushing machine, gola and cemented space for drying caster seeds and other oil seeds in the said land. He claimed to be a permanent tenant in respect of that area and disputed the validity of the notice and the extent of the damages claimed by the plaintiffs. He filed a supplementary written statement on 15-9-1955 after the plaintiffs' amendment of the plaint and stated that he neither denied the title of plaintiff 2 nor refused to pay rent. In clear words, he admitted the relationship of landlord and tenant between plaintiff 2 and himself and expressed his willingness and readiness to pay rent. Defendants 6 and 7 filed another written statement on similar lines and they alleged to have taken settlement of 6 kathas 5 dhurs of land by way of permanent settlement from Jogendra Chandra Mukherjee in the year 1928 for starting a surkhi mill at an annual rent of Rs. 186. After the lease, they constructed a godown and put up an engine shed and a surkhi mill at their cost on the said land. They also filed a supplementary written statement, admitting the relationship of landlord and tenant between plaintiff 2 and themselves and stating that they were always ready to pay rant to plaintiff 2, but she had refused to accept it. The defendants claimed to be in adverse possession as well of these lends and their another objection was that the Civil Court had no jurisdiction to pass a decree for ejectment.
4. The Additional Subordinate Judge held that the right created in favour of Mandira Mukherjee by the deed of family arrangement was not a right restricted to her personally within the meaning of Clause (d) of Section 6 of the Transfer of Property Act and the lease executed by her in favour of plaintiff 1 was not void. He thus found that plaintiff 1 had acquired a title on the basis of the lease and the defendants were only monthly tenants of the house and structures and not permanent tenants. He further held that he had jurisdiction to try this suit and the defendants ware liable to eviction as they had denied the landlord's title and not paid rent for two months. Accordingly, he passed a decree in favour of plaintiff 1 for recovery of possession of the house and the vacant lands and for damages at the total rate of Rs. 470 per month from 18-11-1952 till recovery of possession. Being aggrieved by this judgment and decree, defendants 1 to 7 preferred this appeal, but it was compromised between the plaintiff No. 1 and defendants 1 to 4. Accordingly, defendants 5 to 7 alone are now prosecuting this appeal.
5. Learned counsel for the appellants urged that Mandira Mukherjee (plaintiff 2) had got only a life interest by the deed of family arrangement dated 9-7-1951 (Exhibit 3) for her maintenance and she could only take the usufruct of the property, but had no right at all to alienate or encumber that property. According to him, as she had only a limited interest and a right of disposal only in respect of the income of the said property, the lease by her in favour of plaintiff 1 was void and the lessee acquired no title in respect of these holdings. He thus urged that the Additional Subordinate Judge was entirely wrong in passing a decree in favour of plaintiff 1. He referred to the provisions of Section 6(d) of the Transfer of Property Act which provides that an interest in property restricted in its enjoyment to the owner personally can not be transferred by him. The general rule is that property Is transferable and there should be free alienation and circulation of property, but there are certain exceptions to this rule and Section 6 comes in that context. Clause (d) of that section envisages that an interest in property which is restricted in its enjoyment to the owner personally is by its very nature not transferable unless, the restriction is void under Section 10 of the Transfer of Property Act.
The question whether an interest in property is restricted in its enjoyment can be answered by ascertaining the intention of the parties creating such interest as appearing from the recitals in the instrument which created an interest. It is thus necessary to look to the terms of the deed of family arrangement (Exhibit 3), The parties to this deed were Mandira Mukherjee (1st party No. 1), Amrit Lal Sen, Pleader (1st party No. 2), executor of the will executed by Achindra Chandra Mikherjee Tamalika Banerjee for self and natural guardian of her minor son, Shubhratesh Banerjee (2nd party No. 1), Nikhlesh Banerjee (2nd party No. 2), another son of Tamalika Banerjee, and Sachindra Chandra Mukherjee (3rd party). This deed gives the genealogical table of the family of Jogendra Chandra Mukherjee and recites that Sachindra Chandra Mukherjee and Achindra Chandra Mukherjee, the two grand-sons of Jogendra Chandra Mukherjee, inherited the properties of their grand-father, it contains various schedules and Mandira Mukherjee (1st party No. 1) got an absolute title in respect of the properties mentioned in schedule A of that deed, but with regard to the lands described in schedule B of that deed. It will be relevant to quote the following terms of Clause (2) (of that deed):--
"That the said first party No. 1 shall further have the property mentioned in schedule '6' for her me only with right of disposal only over the income of the said property, subject nevertheless to the payment by her of all assessments, revenue, cesses, Municipal taxes, ground rent and all other sorts of taxes, rates and outgoing whatsoever which are now or at any time hereafter during her life be assessed, imposed or charged upon the said properties or in respect thereof and if perchance any or the properties given to her till heir death is or are sold for non-payment of any sort of taxes or demands or by any laches, on the second party will be entitled to get proper compensation for the same from the first party No. 1 hereof and first party No. 1 shall remain liable-in person and in property for such compensation provided the first party No. 1 shall not he entitled to encumber the said properties or any portion thereof even for her life time (a) Provided always that on the death of the said first party No. 1 the said properties shall at once pass either to the said second party No. 1, she survives the first party No. 1 or to her two present sons or her more sons if born and living at that time also absolute in equal shares and the said first party No. 1 shall hold the properties mentioned in Schedule 'B' for her life only. And whereas the said first party No. 1 shall have no right to alienate or gift or encumber in any way even for her life-time not even for legal necessity or any religious and charitable or any purpose and in case of abolition of Zamindari or in State acquisition of any of the property of schedule 'B' the price of compensation if paid in cash is to be paid to the second party after having reserved l/8th of the sum fixed to first party No. 1 in lieu of annual income of per life interest of that property and first party No. 1 will be the absolute owner of that said l/8th portion and if paid in bond or any other manner the first party No. 1 will be entitled to interest or usufruct only thereof and after her death second party will be absolute owner thereof."
Learned counsel for the appellants submitted that Mandira Mukherjee (plaintiff 2) had a right of disposal in respect of the income only of the property described in schedule B and she could not touch the corpus. In other words, according to him, she got an interest in the property as envisaged in Section 6(d) of the Transfer of Property Act and she could not transfer it. According to this clause, Mandira Mukherjee had to pay the revenue, cess, Municipal taxes, ground rent and other taxes in respect of the property described in schedule B, meaning thereby that she was to remain in possession of the said property and she had to bear the liability in respect of these public demands. It was thus not a case where someone else had to pay these demands and the surplus, if any, left after paying these demands was to be paid to her for her needs and requirements. Apart from it, the property itself was to pass after her death to Tamalika Banerjee (2nd party No. 1) if she survived, Mandira Mukherjee. This indicates that unless the property itself came to be owned and possessed by Mandira Mukherjee, there could not have been a question of its passing after her death to someone else. Another fact to be noted is that she was not entitled to encumber the said property or any portion thereof and this also indicates that she got a right in the property itself. These recitals are consistent with her case that she got a right in the properties described in schedule B of that deed and she had a right to enjoy the properties during her life-time.
It further appears that her husband also had inherited these properties from his grand-father and after the death of her husband, she got her husband's share in those properties. It is not a case where the properties described in schedule B came to her for the first time by this deed alone and, on the other hand, she had an antecedent title in respect of those properties, but a clause against alienation was inserted by this deed. Learned counsel for the appellants placed great reliance on the decision in the case of Lachhmeshwar Sahai v. Mt. Moti Rani Kunwar, AIR 1939 PC 157 to support his submission. That appeal arose out of a suit brought by Lachhmeshwar against his step mother (defendant - respondent) for enforcement by sale of two mortgages dated 18-9-1926 and 20-9-1929 executed by her. A question arose as to the validity of those mortgages. It appears that Narbadeshwar Sahai was married three times and had a son by each wife. His eldest son was Ramnandan, second son was Lachhmeshwar, the plaintiff-appellant, and his third son was Sumeshwar. The defendant-respondent Mosstt. Moti Rani Kunwar was his third wife and was the mother of Sumeshwar.
In 1921, Ramnandan, the eldest son, filed a partition suit and by the decree dated 9-8-1922 his 4 annas share was separated; his father and brother being also held entitled each to a 4 annas share and the respondent being given a 4 annas share for her life as was her right upon a partition between her husband and sons. The appellant, the second son, brought a similar suit in 1923 for 4 annas out of the remaining 12 annas. After the birth of the third son, Sumeshwar, in 1924, the whole matter of the family property was referred to arbitration and the partition deed of 20th January 1925 was entered into by Narbadeshwar, his wife and his three sons (together with Ramnandan's wife who claimed certain rights by transfer from her husband).
"The effect of the deed was that the respondent relinquished the four annas share which she had obtained under the decree of 9th August 1922; that to Narbadeshwar and each of his three sons a four annas share was allotted in severally; and that the respondent was given an interest after her husband's death in the four annas share which her husband took under this arrangement."
Their Lordships referred to the relevant passage of the deed which indicated that Bahuria Moti Rani Kunwar relinquished her claim in respect of her four annas share and she was given a right to appropriate the profits only in respect of the four annas share of Narbadeshwar after his death. She had no power of making a mortgage or other transfers in respect of that share which was to remain in her possession up to her life-time with life interest. A question cropped up as to whether she took a life-interest in her husband's share after his death and whether the condition prohibiting her from making a mortgage or other transfer was bad under Section 10 of the transfer of Property Act, or whether she took an interest in property restricted in its enjoyment to the owner personally within Clause (d) of Section 6 of that Act. Construing the relevant passage, their Lordships came to the conclusion that the intention was to give Moti Rani Kunwar for her maintenance a personal right to appropriate the net profits of her husband's share after his death. Accordingly, her interest under that deed was held to be an interest in property restricted in its enjoyment to the owner personally coming within the purview of Clause (d) of Section 6 and as such it was not transferable.
It is important to note that Bahuria Moti Rani Kunwar had relinquished her four annas share which she had obtained by the decree dated 9-8-1922 passed in the previous partition suit and in lieu of that she was given the right to appropriate the profits of 4 annas share which belonged to Narbadeshwar Sahai and that was to remain in her possession after his death. The facts, of the present case are entirely different and by the deed of family arrangement dated 9-7-1951 there was no relinquishment by Mandira Mukherjee of any share of the properties described in schedule B. She had a title to those properties even prior to the execution of the deed and the deed only put certain restrictions on her rights in respect of the alienation. I am, therefore, of the view that the facts of the case relied upon are not similar to those of the present case and learned counsel cannot take any assistance from that decision.
He referred to the case of A.P. Joseph v. E.H. Joseph, AIR 1926 Rang 186 as well and the question there arose as to whether a mortgage was illegal in view of the provisions of Section 6(d) of the Transfer of Property Act. The mortgagor (defendant) was a beneficiary under a deed of gift on the part of his father in which he was entitled to a life interest--and to a life interest alone--in certain rents. It was contended on behalf of the defendant that the deed of gift, construed as a whole, indicated that it was the intention of the donor to provide for his sons and that they were not to alienate their life interest to anyone else. Cuniiffe, J. came to the conclusion that that was the right way to look upon that deed as a whole and that being so, Sub-section (d) protected the purported mortgage. The terms of the deed of gift are not clear from the judgment and, in any event, those terms cams to be construed in a certain manner. The question as to what are the intentions of the parties and what is the effect of a certain deed has to be decided on the facts of each particular case, keeping in view the various recitals of a particular deed and the fact that one deed was construed in a particular manner cannot be of any avail for construing the terms of another deed in another case.
6. Learned counsel further submitted that according to the terms of the deed of family arrangement (Exhibit 3), Mandira Mukherjee had no right to alienate or encumber the property described in schedule B and that term of the said deed was valid and enforceable. He urged that the provisions of Section 10 of the Transfer of Property Act had no application inasmuch as there was no transfer of property in her favour by the deed of family arrangement. Section 10 provides that "where property is transferred subject to a condition or limitation absolutely restraining the transferee or arty person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void..........."
Right of transfer is incidental to and inseperable from the beneficial ownership of a property and this section envisages that a condition of absolute restraint of alienation is void. The reason behind this is that there should be a free disposition of property. Before the provisions of this section can be held to be applicable, it has to be ascertained as to whether there was a transfer. Learned counsel for the appellants urged, while dealing with the provisions of Section 10 that Mandira Mukherjee nad antecedent title and independent right in respect of the properties described in schedule B and as such there was no transfer of property in her favour by the said deed. In case of a family arrangement, each party takes a share or interest in the family property by virtue of an independent title and it cannot be held to be a conveyance of property from one who has title to it to another who has no title to it.
He referred to the case of Basangowda Virupaxgowda v. Irgowadati Kallangowda, 73 Ind Cas. 196 : (AIR 1926 Rang 186). In that case, a compromise was arrived at by which a Hindu widow was given a restricted life interest without power of alienation and the joint family was to have the reversion. A decree-holder against the widow urged that the restriction against the alienation was void and in the alternative he wanted to attach in execution the interest of the widow. It was held that the compromise was a family arrangement under which the widow was to remain in the personal enjoyment of certain lands for the term of her life, and that it did not amount to a "transfer of property" within the meaning of Section 10 of the Transfer of Property Act to attract the provisions of that section as to restraints on alienation. It was worth noticing that, white making this submission learned counsel proceeded on the footing that Mandira Mukherjee had an antecedent title in respect of the lands described in schedule B of that deed and this being the position, the conclusion is irresistible that it was not a case where she got a right for the first time by the deed itself. I am, therefore, of the view that the learned Additional Subordinate Judge rightly held that the deed of family arrangement could not be said to be a transfer within the meaning of Section 5 of the Transfer of Property Act. This is in consonance with the decision in Jatru Pahan v. Ambikajit Pd., AIR 1957 Pat 570.
7. Learned counsel pointed out that Mandira Mukherjee (plaintiff 2) had no power to execute the lease (Ext. 4) in perpetuity on 18-9-1952 in favour of plaintiff 1 in respect of the lands in suit and the latter acquired no right on the basis of the said lease. The learned Additional Subordinate Judge pointed out that before the lease she was getting about Rs. 105 from the tenants, but by this lease in favour of plaintiff 1 she got an income of Rs. 150 per month, In other words, this lease was executed by her for increasing her income from these properties and his conclusion was that she had every right to execute the said lease. He further took the view that the lease in question was only voidable and not void. In support of this, he referred to the case of Ram Chandra v. Gopi Nath, AIR 1916 Cat 644. It appears that the plaintiff and defendant 2 in that case had come to an agreement in a former suit that certain property should be given to the latter for her maintenance, but that she should not be able to alienate it. She, however, alienated it to defendant 1 which gave a cause of action to the plaintiff for that suit to recover possession. The contention of defendant 1 was that the restriction on the right of defendant 2 to alienate the property was contrary to Sections 10 and 12 of the Transfer of Property Act and this contention was upheld. The distinction is that defendant 2 had got that property in a former suit and she had no antecedent title to it; in other words, there was a transfer of property in her favour with a condition not to alienate. This condition was undoubtedly void under Section 10. The position in the present case is different; inasmuch as Mandira Mukherjee had an antecedent title in respect of the properties described in schedule 8 of the deed (Ext. 3).
8. The question arises as to whether plaintiff 1 derived any valid title on the basis of the lease (Ex. 4) executed in his favour by plaintiff 2. Mr. Lalnarain Sinha contended that in the present case if defendants 5 to 7 had no right to resist the claim for eviction, the decree of the trial court in favour of plaintiff 1 should be affirmed in this appeal and the question as to whether plaintiff 1 or 2 was entitled to a decree should not be gone into in the present appeal inasmuch as it was not at all necessary. Defendants 5 to 7 were entitled to urge in this appeal that the decree in favour of plaintiff 1 was erroneous as he had no title on the basis of the lease and the question having been raised, the Court cannot leave the matter in doubt. By the deed (Ex. 3) Mandira Mukherjee got absolute interest in some properties (schedule A) whereas life interest in properties specified in schedule B. She placed restrictions on her rights with regard to schedu'ie B lands relinquishing her absolute interest in respect thereof in consideration of obtaining absolute rights in some other properties. Other parties to the deed accepted that arrangement on these terms. There was an absolute restraint on her in the matter of encumbering the said properties or any portion thereof even for the lifetime and this being so, plaintiff 1, did not acquire a valid title in respect of the properties in question on the basis of the lease in his favour. The trial court was thus not right in granting a decree to plaintiff 1. Mr. Lalnarain Sinha alternatively contended that even if plaintiff 1 was not entitled to a decree, this Court could pass a decree in favour of plaintiff 2 (respondent 2) and he relied on the provisions of Order 1 Rule 4 and Order 41 Rule 33 C. P. C. The two plaintiffs had instituted this suit for eviction and it is open to the appellate Court to pass a decree in favour of a party who had not filed an appeal or cross-objection. In my opinion, it is a proper case for the exercise of this power and a decree should be passed in favour of plaintiff 2 instead of plaintiff 1. The object of Rule 33 is to enable the Court to do complete justice between the parties : vide Ganesn Ram v. Baikunthesh Prasad, AIR 1951 Pat 291. The decree of the trial court must be modified to this extent.
9. In the trial Court, the defendants had challenged the validity of the lease on the ground that it was fraudulent and without any consideration, but the finding was against them and the court held that the lease (Ext. 4) was, neither fraudulent nor without consideration. This finding had not been assailed in this appeal and it must, therefore, be affirmed.
10. Further plea of the defendants in the court below was that they were permanent tenants and they had alleged that they took settlement from Jogendra Chandra Mukherjee. It appears that the settlor did not grant any patta for the alleged permanent settlements. The defendants did not produce a single receipt about the payment of annual rent and they admitted that they were paying rent by monthly instalments. Exhibit E series filed on behalf of Ramdas (defendant 5) indicated monthly payments and those payments were not in respect of the ground rents. The trial court further noticed that the counter-foil rent receipt (Ext. 15) filed on behalf of the plaintiffs indicated that the defendants had paid rent for the premises in occupation and not paid the ground rent. Other defendants did not file any rent receipt. The learned Additional Subordinate Judge examined carefully the evidence of the defendants witnesses and came to the conclusion that their evidence was not satisfactory and reliable to support their case of permanent settlement. Accordingly, he came to the conclusion that the defendants were monthly tenants and not permanent tenants of these holdings. This finding as well has been arrived at on a proper consideration of the evidence 3ml it could not be contested in this appeal. The position thus is that the defendants were monthly tenants in respect of the holdings in question.
11. Another objection was taken in the trial Court that the Civil Court had no Jurisdiction to try this suit for eviction inasmuch as the Controller had jurisdiction to evict the defendants at the time when this suit came to be filed. It is true that at that time the Controller had the power to pass an order for eviction, but during the pendency of this suit the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, was amended by Act XVI of 1955 and after the amendment, Civil Court got Jurisdiction to eject a tenant on one or more of the grounds mentioned therein. In these circumstances, the trial court rightly held that it had jurisdiction to try this suit for eviction of the defendants. Learned counsel for the appellants took an objection in this appeal that the grounds for eviction as envisaged in Section 11 of the said Act were not made out in the plaint and as such the Court below was not right in granting a decree for eviction. He pointed out that the plaintiffs' case throughout in the plaint was that the defendants had denied the relationship of landlord and tenant and that alone was the ground on which they had sought for the eviction of the defendants. He referred to paragraph 8 of the plaint where the various grounds for eviction were enumerated. The plaintiffs stated in paragraph 8(a) that the defendants had denied, the leasehold right of plaintiff 2 over the land in question and had falsely set up a permanent tenancy of the entire land by alleged settlement from Jogendra Chandra Mukherjee in paragraph 8(e) they stated that the position of the defendants was at best that of a licensee or tenants at will or trespassers and they were liable to be evicted without notice. In paragraph 8(f), their case was that the defendants were only monthly tenants with regard to the premises.
It should be pointed out at this stage that the plaintiffs had stated in paragraph 9 of the plaint that the defendants had forfeited their tenancy and they were liable to eviction as their so called lease was determined by a notice dated 12-12-1952 issued on behalf of both the plaintiffs. This paragraph 9 was amended by a petition dated 5-94955 filed on behalf of the plaintiffs and by that petition they wanted a few words to be added in paragraph 9. The amendment was that the defendants had forfeited their tenancy on account of denial of plaintiffs' title and non-payment of rent. This latter clause "non-payment of rent" is significant and by this amendment the plaintiffs brought their case within the four corners of Section 11 of the said Act. In answer to this, defendants 5, 6, and 7 filed supplementary written statements admitting the relationship of landlord and tenant between plaintiff ? and themselves and they further alleges that they were throughout willing to pay rent to plaintiff 2. Learned counsel further pointed out that in paragraph 10 of the plaint the plaintiffs had stated that the cause of action arose on account of non-payment of arrears of damages for use and occupation. He made out a point that the plaintiffs did not allege in that paragraph that there was non-payment of rent. The plaintiffs have, however, given details of their claim in their plaint and for certain months they had claimed a certain sum on the basis of the monthly rent which one or the other defendant had to pay.
For the sake of illustration I may point out that defendant 5 had to pay a sum of Rs. 42/S/- as monthly rent and the plaintiffs claimed a sum of Rs. 127/8/- (as rent) from that defendant for the months of October, November and December 1952. Similarly, they claimed from defendants 6 and 7 a sum of Rs. 77/8/- as total rent) for five months (August 1952 to December 1952)' and that was at the rate of Rs. 1578/- per month. Beyond these periods, they claimed damages at the rate of Rs. 50/- per day from each set of defendant. This account indicates beyond doubt that the plaintiffs had claimed arrears of rent from the defendants and the word "damages" in paragraph 10 was loosely used. In view of the amendment of the plaint, I do not find any merit in the contention of learned counsel that the plaintiffs did not bring their case within the four corners of Section 11 of the said Act.
12. Learned counsel further pointed out that nonpayment of rent for a period of more than two months was not alleged in the plaint even according to the amendment of paragraph 9. The position, however, was that before the amendment of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, Section 11(1) (a) provided that a landlord was entitled to evict a tenant in the case of a month to month tenancy, for non-payment of rent and, in view of that provision as it stood then, the plaintiffs sought to amend paragraph 9 in the manner already stated above. It was after the amendment of Section 11 of the said Act that a landlord has to assert that the tenant had defaulted in paying the rent for a period of two months. There is thus no merit even in this objection. Besides this, the defendants themselves had taken the plea that they were willing to pay rent to plaintiff 2, but she had refused to accept it. The position thus was that the plaintiffs had alleged non-payment of rent and the defendants, on the other hand, had alleged that they were willing to pay rent but it was refused by plaintiff 2. This question was gone into in the trial court and it is not that that defendants are being taken by surprise at a subsequent stage. I am, therefore, of the view that the trial court had jurisdiction to consider the case of the plaintiffs on the footing that they wanted to evict the defendants on the ground available to them under Section 11 of the said Act.
13. The next question which arises for consideration is as to whether there was a default by defendants 5 to 7 in the payment of monthly rents to the plaintiffs. Dhanraj Nathani (plaintiff 1) deposed that the defendants had not paid rent from August or September 1952. Baldeo Narain Singh (defendant 6) has figured as D.W. 7 and he stated in cross-examination that he did not remember whether he had paid rent to Mandira Mukherjee in 1952 or 1953. He then said that for the last two years only he had not paid rent to her. He could not say if the rent receipts were at home. It is difficult to believe that if he had paid rent he would not remember it. Defendants 6 and 7, as already observed, did not file any rent receipt. Ramdas San (defendant 5) filed rent receipts, exhibits E to E (5), in respect of the payment of rent and exhibit E indicates that he paid a sum of Rs. 42/8/- as rent for the month of September 1952. The earlier receipts an for the previous months and it is clear that he did not pay rent for the period after September 1952. In this state of affairs, defendant 5 as well was a defaulter for a period of more than two months before the institution of the suit and, so far as defendants 6 and 7 were concerned, they have not at all proved that they paid any rent. Their supplementary written statement indicates that they were ready to make payment but, apart from this, they have not shown that they either remitted the rent or deposited it In Court in the event of any refusal by the plaintiffs to accept rent.
The learned Additional Subordinate Judge, while dealing with this question about the default observed that admittedly two months' rent was in arrears before the institution of the suit and therefore, irrespective of any other fact, the defendants were liable for eviction on this ground alone. Learned counsel for the appellants took an exception to the Court's using the word "admittedly", but it appears that the Court came to that conclusion in view of the supplementary written statements as well of these defendants. In any event, I have referred to the evidence on this point and the defendants have not been able to establish that they had paid rents which were due. The onus of proving payment lay on them, but they failed to discharge it. In these circumstances, they were liable for eviction for non-payment of two months' rent and the conclusion of the trial Court in this respect cannot be interfered with.
14. Learned counsel for the appellants further submitted that the notice (Ext. 11) dated 12-12-1952, asking the defendants to vacate on 1-1-1953 was invalid on the ground that the premises were let out to the defendants for manufacturing purposes and as such it was incumbent on the landlord to give 6 months' notice expiring with the end of the year of the tenancy as provided in Section 106 of the Transfer of Property Act. This section provides inter alia that in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable, on the part of either lessor or lessee, six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
The first question to be determined is as to whether there was a lease in favour of the defendants for manufacturing purposes and if it was so, then there would be much force in the objection that six months' notice was not given in the present case. Learned counsel wanted to make out that the lease was for manufacturing purposes and he referred in this connection at first to the statements made by defendant 5 in paragraph 12 of the written statement. Defendant 5 stated therein that the lease taken from Jogendra Chandra Mukherjee 40 to 45 years ago was for fixing machines etc, and not initially for any constructions. Later on, he developed his business, made improvements and 8 kathas of land contained oil crushing machine, Gola and cemented space for drying caster seeds and other oil seeds. Defendants 6 and 7 as well stated in paragraph 12 of their written-statement that they took 6 kathas 5 dhurs of land in the year 1928 from Jogendra Chandra Mukherjee for starting a surkhi mill. Learned counsel referred to the evidence of Jageshwar Prasad Sinha (D.W. 1) and pointed out that according to this witness the settlement was for gola purposes. This statement by itself is of no help to the defendants. Defendant 6 stated In examination-in-chief that he took settlement for fixing a surkhi kal (machine for powdering bricks) and there was no structure of any kind on that land at the time of settlement. He stated in cross-examination that he had not taken license for installing surkhi machine and he did not file any application before the Municipality for installing this machine. His evidence further was that he installed the surkhi machine one year after the settlement and he purchased the said machine from Deoria Kolhi but he did not remember as to in which year he purchased it. He did not preserve the receipt in respect of the said purchase.
I have already referred to his evidence while considering the question as to whether he had paid rent in the year 1952 or 1953 and he stated that he could not remember about the payment in those years. He supplied Surkhi in the town on cash payment, but he neither kept any account nor maintained any register. Ramdas Sah, defendant 5, made out that his brother Jagrup Sah took settlement of 8 kathas of lands 43 or 44 years ago for the purpose of installing Andi oil machine and the rent used to be paid annually before but, later on, it came to be paid in 12 monthly instalments. He admitted in cross-examination that he was not present at the time of the said settlement and he could not say if any salami as paid or any document was executed. He did not know as to who else was present at the time of settlement with his brother. He gave his age as 55 years in September 1955 when he was deposing and it thus appears that he was born sometime in the year 1900. The settlement, according to him, was 43 or 44 years ago which means that it was sometime in 1911 or 1912. The witness was too young then and, in any event, he admitted that he was not present at the time of the said settlement He is thus not at all competent to prove the purpose of the settlement. Plaintiff 1 stated in cross-examination that Ramdas Sah, defendant 5, had a gola for andi and linseed and ha had further got a hand-driven machine for Andi oil.
In view of this evidence, learned counsel submitted that the lease in question was for manufacturing purposes and the defendants could not be evicted in absence of a proper notice. The evidence no doubt indicates that these defendants had a machine far powdering bricks and another machine for Andi oil, but the user of the land is somewhat different from the purpose for which a tenancy came to be created initially. In Sati Prasanna v. Md. Fazel, AIR 1952 Cal 320, it was observed as follows:
" .... a lease for manufacturing purpose must be a lease which at its inception is for that purpose. The lease at the time of the grant by the landlord must be impressed with the purpose of manufacture. The fact that, the premises after being taken is actually being used by the tenant for manufacture does not make the lease for manufacturing purpose within the meaning of Section 106, T. P. Act. It is necessary to emphasise that a lease or a tenancy must be by agreement between the landlord and the tenant and both the parties must know that the lease is for manufacturing purpose at the time of the grant. If that is not so then the nature of subsequent user of the premises by the tenant without agreement of the landlord will not convert such a lease into one for manufacturing purpose."
The Court has thus to ascertain the intention of the parties as appearing from the recitals in a deed, if available and not from the subsequent user and conduct of the lessee. Apart from this, I have already' referred to the evidence which indicated that these defendants were monthly tenants and that also is a circumstances leading to the conclusion that the lease, was not for manufactering purposes. I am thus of the view that the lease in question was not for manufacturing purposes and the notice (Ext. 11) was valid and sufficient for the determination of the tenancy.
15. Learned counsel's another objection was with regard to the damages allowed by the trial Court. He submitted that the Court below was wrong in allowing separate damages for the house and for the land. According to him, the house and the land came under one unit and both were let out to the defendants on one lump rent. He thus urged that separate damages could not be awarded. In answer to this, learned counsel for the plaintiffs referred to paragraph 8 (f) of the plaint where the plaintiffs had made a distinction between the premises and the vacant land. They urged therein that the defendants were tenants with regard to the premises but the vacant land was all along in possession of plaintiff 2 and her predecessor and it was only during the proceeding under Section 144 of the Code of Criminal Procedure that the defendants asserted their title and possession over the entire land. The plaintiffs paid separate amounts of court-fee in respect of their claim with regard to the house and that of the land. The entry (Ext 5), of the Assessment Register of Muzaffarpur Municipality for the year 1948-49, indicated that holding No. 534 occupied by Ramdas (defendant 5) had an area of 0.11 acre but the said defendant claimed 8 kathas of land in his written statement Learned counsel for the plaintiffs pointed out that 0.11 acre was equivalent to 3 kathas only but defendant 5 claimed 5 kathas more in his written statement and thus 5 kathas were the vacant lands in his possession Similarly, another entry in the Assessment Register in respect of holding No. 536 in occupation of Baldeo Narain Singh (defendant 6) indicated that the area of that holding was 0.92 acre equivalent to about 121/2 kathas. Defendants 6 and 7 had claimed only 6 kathas and 5 dhurs in their written statement and thus in their case, an excess area was recorded in their possession in the Assessment Register. In view of these entries and the respective claims, the argument was that these defendants were in possession of the vacant lands separately (which were not let out to them) without any justification and as such they were liable for damages in respect of those lands. The learned Additional Subordinate Judge was impressed with the plaintiffs' contention and held that the vacant land measured 18 kathas but, out of that 5 kathas were covered by the paths running round this Andi Gola. He, therefore, came to the conclusion that 13 kathas of vacant land were left for assessing damages in favour of plaintiff 1.
The first question to be determined is as to whether only the houses were let out to defendants 5 to 7 or the vacant lands as well were included in their tenancy. I If the vacant lands were not included in their tenancy, then of course the plaintiffs would be entitled to damages separately in respect of those lands. Plaintiff's case in paragraph 4 of their plaint was that the defendants were monthly tenants of the "premises" on these, holdings. According to dictionary, "premises" means house, building, with grounds and appurtenances. The plaintiffs did not make it at all clear in paragraph 4 as to which portion of the land was let out along with the houses to these defendants and which portion remained in possession of Jogendra Chandra Mukherjee. When a house is let out, at least some portion of the land also if any, in front of the house, either to be used as a passage or, for some other needs and requirements is included in the tenancy. The plaintiffs did not choose to make out' a case that the defendants were given the permission to occupy a particular portion of the land only along with the houses leaving the rest to the then landlord Jogendra Chandra Mukherjee. In absence of a pleading to this effect, it is difficult to accept the plaintiffs' case that the defendants were not allowed to be in possession of the vacant lands. Reference to paragraph 8 (f) of the plaint does not advance the case of the plaintiffs any further, inasmuch as there also the area of the vacant lands in their possession was not disclosed.
The lands in suit were described as follows in the plaint:
"Description of premises from which eviction is Sought: An area of 1 Bigha 6 kathas or 47864 square feet bearing Holding Nos. 534, 535 and 536 within Circle No. 2, Ward No. 8 and also bearing survey Plots Nos. 1550, 1555, 1556, 1559M, 1509M, 1551, 1552, 1553, 1554, 1559M with houses and structures thereon situated in Mahalia Chatabazar, Sariaganj ......"
According to this description, the houses and structures were on an area of 1 bigha 6 kathas and this also gives an impression that the houses, structures and the lands were in one unit and all these taken together were described as premises in paragraph 4 of the plaint. Here also, the plaintiffs did not indicate as to which area was covered by the houses and structures and which area was lying vacant. The plaintiffs gave an account of the damages which they sought to recover, but they did not make any separate claim in respect of the vacant lands. Defendant 5 denied the allegations made in the various sub-paragraphs of paragraph 8 of the plaint and his case was that an area of 8 kathas with structures thereon was let out to him by Jogendra Chandra Mukherjee. Turning to the evidence, I find that Dhanraj Nathani (plaintiff 1) deposed that the defendants were occupying tne structures on the suit lands as monthly tenants. He further' stated that there were about 18 kathas of vacant lards besides the land covered by the structures. His evidence does not indicate that Jogendra Chandra Mukherjee kept the vacant lands in his possession as having excluded them from the tenancy. He, however, came later on the scene on the basis of the lease and thus it is necessary to examine as to what plaintiff 2 said about the tenancy.
She was examined on commission and her evidence is that the defendants were not tenants in respect of the lands, rather they were tenants of houses in respect of which they paid rants. According to her, the defendants had no concern with the lands. She admitted in cross-examination that she never went to see the Andi Gola property and she did not remember how many municipal holdings were in it. A question was put to her as to how many houses in Andi Gola were let out, but her answer was that she could not say about that matter as she did not go there. She did not know either the area of the land covered by the houses or the area which was vacant. She was not aware whether there was any road in the Andi Gola. It appears clearly that she is completely ignoramus about these essential facts and she had not seen any paper regarding Andi Gola property. The learned Additional Subordinate Judge, while dealing with this question no doubt formulated a point as to what was the rent payable for the vacant lands, but before considering that point it was essential to find out as to whether the lands were excluded from the tenancy. He only referred to the evidence of plaintiff 1 and observed that according to that witness the area of the vacant land was 18 kathas, out of which 5 kathas were covered by the paths running round this Andi Gola. There is no doubt that there were vacant lands, but that does not solve the question and unless the plaintiffs were able to establish that those lands were kept aloof and separate and excluded from the tenancy, the mere existence of the vacant lands would not entitle them to claim damages separately in respect of those lands.
The learned Additional Subordinate Judge has not referred to any other evidence relating to the exclusion of the vacant lands from the tenancy and the continuance of possession of Jogendra Chandra Mukherjee or his heirs in respect of those lands. In view of these circumstances, he was not right in allowing damages separately to plaintiff 1 in respect of the vacant lands measuring. 13 kathas and his finding in this respect must be reversed.
16. Next comes the question if the defendants will be liable to pay any damage and if so, to what extent Plaintiff 1 stated that he could have earned Rs. 200 per day if he was not prevented from constructing the structures and taking possession of these lands. He claimed damages in the plaint all told Rs. 150 per day from at the defendants (defendants 1 to 7), He had undoubtedly a mind to install a machine for manufacturing Andi oil. The Additional Subordinate Judge himself took the view that a sum of Rs. 200 per day claimed by plaintiff 1 in his evidence seemed to be "too remote a damage" and he further noted that plaintiff 1 failed to produce any paper showing that that was the usual rate of profit. He then concluded that the rents for these houses should be doubled and damages should be allowed at that rate. Accordingly, he allowed damages in respect of all the houses in occupation of defendants 1 to 7 at the rate of Rs. 210 per month as the rent payable was Rs. 105 per month. Ha relied on a decision of the Lahore High Court in Rure Khan v. Ghulam Muhammad, 75 Ind Cas 1034 : (AIR 1924 Lah 643), where damages at a rate which was double the rent were allowed. In that case it was found that the defendant (tenant) had held over wilfully and without good reason. It cannot be held that as a general rule in all cases, a sum equivalent to double the rent should be allowed as damages. I cannot accept the view of the trial Court in this respect.
I have already referred to the fact that defendants 1 to 4 had compromised this appeal in respect of a portion of the land which they had claimed. Thus, the claim with regard to damages has to be considered in respect of the remaining portions only of the premises which continued in occupation of defendants 5 to 7. Defendant 5 was claiming 8 kathas which came to roughly l/3rd of the entire area, whereas defendants 6 and 7 claimed 6 kathas 5 dhurs and that was roughly l/4th of the entire area. Even after the determination of the tenancy, a person continuing in possession can be regarded as 'tenant', as defined in Section 2 (h) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 The position in law of defendants 5 to 7 was that of monthly tenants. They could not be evicted before a decree is passed under Section 11 of the said Act Till then, they continued to be tenants and therefore they are liable to pay the contracted rents to the landlord. Plaintiff No. 2 will thus be entitled to get rent from defendant 5 at the rate of Rs. 42/8/- per month from October 1952 and from defendants 6 and 7 at the rate of Rs. 15/8/- per month from August 1952 till the date of the decree. The trial Court allowed damages from 18-11-1952 which was the date of the final order under Section 144 of the Code of Criminal Procedure against the plaintiffs. This Is also open to objection inasmuch as plaintiffs had claimed rent for the period upto December 1952. Defendants 5 to 7 were thus liable for the rent as indicated above. Subsequent to the decree, they will be liable to pay damages to plaintiff 2 till they were dispossessed in execution of the deeree for eviction passed by the trial Court but the rates of those damages will be the same as those of the monthly rents as they will be still regarded as tenants according to Section 2 (h). The damage for this period, that is, from the Date of the decree of the trial Court till the date possession was taken from them through execution of the decree will nave to be calculated in a separate proceeding on payment of court-fee thereon by plaintiff 2.
17. In the result, the appeal is allowed in part and the judgment and decree of the trial Court are modified. The suit of plaintiff 2 for the eviction of defendants 5 to 7 is decreed and she is entitled to a decree for arrears of rent against defendant 5 at the rate of Rs. 42/8/-per month from October 1952 and against defendants 6 and 7 at the rate of Rs. 15/8/- per month from August 1952 till the date, of the decree. Thereafter plaintiff 2 will let damages from defendant 5 at the rate of Rs. 42/8/- per month and from defendants 6 and 7 at the rate of Rs. 15/8/- per month till the date possession was taken from them by execution of the decree. The amount of subsequent damage will be calculated in a saparate proceeding on payment of court-fee by plaintiff 2. Plaintiff 1 is not entitled to any relief.
18. Plaintiff 1 has preferred a cross-objection with regard to the extent of damages allowed by the trial Court and his grievance is that the Court ought to have allowed damages to the extent of at least Rs. 1410 per month. Learned counsel for the cross-objector submitted that damages to the extent of Rs. 630 per month should have been allowed in respect of that portion of the land on which there were structures and to the extent of Rs. 780 per month in respect of the vacant lands. I have already held that separate damages cannot be awarded in respect of the lands and it is not necessary to repeat the reasons assigned for coming to that conclusion. This cross objection has no merit in view of my finding that plaintiff 1 did not acquire a valid title on the basis of the lease (Ex. 4). Plaintiff 1 is thus not entitled to any damage. The result is that the cross objection is dismissed. In the circumstances of this case, the parties will bear their own costs of the suit, the appeal and the cross-objection.
Appeal from Original Order No. 236 of 1959 :
19. This appeal is directed against an order dated 24-6-1959 passed by the 2nd Additional Subordinate Judge of Muzaffarpur in Miscellaneous Case No. 34 of 1958, It appears that after the decree dated 28-9-1955 of the trial Court in Title Suit No. 13/61 of 1953-54, plaintiff 1 (decree-holder) filed an execution case with regard to the claim for damages. He claimed a sum of Rs. 4272/3/- dividing it in four heads. Item No. 1 related to the period 1-7-1956 to 10-9-1956 and this was in respect of Rs. 1056/15/- at the rate: of Rs. 470 per month. In 1956, there was a compromise between the decree-holder and defendants 1 to 4 in this Court with the result that those defendants were exonerated from all the liabilities in respect of damages, A question thus arose as to whether the decree-holder was entitled to realise damages at the rate of Rs. 470 per month. Ramdas Sah, Baldeo Narain Singh and Sukhdeo Narain Singh (defendants 5 to 7) took an objection that the claim in the execution case was arbitrary and it should not be allowed. The petition for execution was filed after the said compromise and thus the decree-holder proceeded against defendants 5 to 7 alone and not against defendants 1 to 4 (who had compromised). The learned Additional Subordinate Judge accepted some of the objections of the judgment-debtors with regard to the claim of the decree holder and allowed the miscellaneous case directing the decree-holder to amend the execution petition in the light of his observations within a certain time, failing which the execution case was to be dismissed forthwith.
Against this order, the decree-holder has preferred this miscellaneous appeal. It appears from the order of the learned Additional Subordinate Judge that he came to the conclusion that defendants 1 to 4 having been exonerated from all liabilities in view of the compromise, the decree-holder was not entitled to a sum of Rs. 94 per month as damages and he was entitled to a sum of Rs. 116 only in respect of the portion on which there were structures. He noted that the decree-holder himself had claimed damages at the rate of Rs. 116 per month for the period 23-9-1956 to 15-5-1958 (vide; item No. 4). Learned counsel for the heirs of the decree-holder appellant contested the findings of the learned Subordinate judge with regard to the amount of damages, but, in view of my finding in First Appeal No. 504 of 1955 that plaintiff 1 did not acquire any valid title in respect of the properties in question on the basis of the lease in his favour, neither he nor his heirs are entitled to any damage and the parties will be governed by the judgment of this first appeal. In this view of the matter, this miscellaneous appeal has become infructuous and it is accordingly dismissed but without costs.
Civil Revision No. 791 of 1959:
20. This application is directed against an order dated 7-8-1959 passed by the 2nd Additional Subordinate Judge, Muzaffarpur, directing the decree-holder to amend the execution petition by 14-8-1959 failing which the execution case was to be dismissed. This order was passed in Execution Case No. 9 of 1958 relating to the decree dated 28-9-1955 passed in Title Suit No. 13/61 of 3953/1954 by the 2nd Additional Subordinate judge, Muzaffarpur. The execution case was filed on 16-5-1958 and the judgment-debtors took an objection that there were various mistakes in the claim made in the execution case. On the objection of the judgment-debtors, a miscellaneous case was registered and on 24-6-1959 the Additional Subordinate Judge allowed some of the objections and directed the decree-holder to amend the execution petition in the light of his observations by 2-7-1959 failing which the execution case was to be dismissed. On 2-7-1959, the decree-holder filed a petition for time on the ground that he was not able till then to obtain a copy of the order and time was allowed to him till 7-7-1959. On 7-7-1959, the decree-holder filed an application stating that he was aggrieved by the said order of amendment and he wanted to prefer an appeal against that order. He expressed his inability to amend the execution petition, but besides this, he made a prayer that sale proclamation should be issued for realisation of a sum of Rs. 2727.44 np. which was found to be due from the judgment-debtors.
The learned Subordinate Judge rejected this petition and gave the decree-holder another opportunity to amend the execution petition by 14-8-1959, failing which the execution case was to be dismissed. The decree-holder had filed this application in revision against this order and after his death, his heirs have been substituted in this application as petitioners. The learned Additional Sub-
ordinate Judge took the view that unless the decree-holder amended his execution petition, it was not proper to issue sale-proclamation and besides that the decree-holder could not establish that a sum of Rs. 2727.44 nP. was payable by the judgment-debtors according to the orders passed in the aforesaid miscellaneous case. It appears that several opportunities were given to the decree-holder to amend his execution petition, but he failed to comply with the orders passed by the Court and even without amending the execution petition, he tried to sell the pro parties, An execution must be for a definite and ascertained amount and unless the application for execution is in.
proper order, no further step can be taken. There was absolutely no warrant and justification for the procedure which the decree-holder wanted to evolve in this case.
in any event, this application in civil revision also must fall on the ground that plaintiff 1 was not entitled to a decree in view of my finding in First Appeal No. 504 of 1955 and the question of amendment of the execution petition or sale either at his instance or that of his heirs is no longer relevant.
21. In the result, this application as well is dismissed but without costs.
Mahapatra, J.
22. I agree.