Patna High Court
Munshi Lal vs Bishun Prasad on 5 June, 1929
Equivalent citations: 120IND. CAS.762
JUDGMENT Wort, J.
1. This appeal arises out of an action in ejectment. The plaintiff's claim substantially was that the 8 kathas of land of which he desired possession was in the permissive possession of the defendant and that on the 4th September, 1923, he the plaintiff served notice on the defendant to quit and on failure to quit this suit was commenced some five months after that date.
2. The defendant denied the plaintiff's title and claimed that he had been in possession of the land since the year 1900 as it had been the subject-matter of a gift to him by one Maha Prasad.
3. Two points are raised in this appeal, being the plaintiff's appeal, the first with which I shall deal is that the Appellate Court, in coming to the conclusion that the plaintiff has not proved his title, has commented upon the fact that the plaintiff did not call Maha Prasad to assist him as a witness in proving his case. If the judgment of the Appellate Court depended upon that question alone, it is obvious that it could not stand. The plaintiff had nothing to do with Maha Prasad; he claimed no title through him, in fact, as I have already stated, it was the defendant's title that depended upon the alleged gift by Maha Prased, and if there was any obligation on any person to call Maha Prasad it clearly appears that that obligation was on the defendant. But this point, in my judgment, is immaterial as the question of title generally has been decided on all the evidence in the case and does not depend on this one question and, therefore, in second appeal we cannot interfere with the judgment on that ground.
4. The substantial question, however, raised is this, that in the year 1918 one Alakh Narain, a decree-holder, obtained a decree against the defendant and attached the land in suit in execution. A claim case was preferred by the plaintiff under Order XXI, Rule 58, the claim was allowed, and the land was released from attachment. Now the plaintiff brings this suit in the year 1924, and it is to be noticed that in the meantime no claim was preferred nor a suit brought by the judgment-debtor, and it is argued, therefore, that the order made under Order XXI, Rule 58 is conclusive by reason of the provisions of Order XXI, Rule 63. The question is whether the defendant, being the judgment-debtor, is bound by that order. Two cases amongst others dealing with this matter have been brought to our notice. One is the case of Kedar Nath Chatterjee v. Rakhal Das Chatterjee 15 C. 674 and the question which is debated before us was discussed in that case. The principle upon which the Court decided the question in the case quoted appears to be stated on page 679. In construing the provisions of the law then applicable, being Section 280 of the then Civil Procedure Code, the learned Judges stated:
But if the section be construed strictly, as we think it must be construed, it seems to us that no order was really made against him under Section 280, and that the present suit is not governed by Article 11 of the Limitation Act.
5. I should have stated in the earlier part of my judgment that the contention here is that the defendant is precluded from setting up his title to the land as the suit which he should have brought after the decision in the claim case is governed by Article 11 of the Limitation Act. That Article provides for a limitation of one year, and it is argued that that time having passed by, the judgment-debtor defendant is precluded for ever from raising the question of his title in the case. It is clear it seems to me from the decision which I have quoted that the principle upon which the Court decided this question is whether or no an order was in fact made against the judgment-debtor.
6. In the other case of Krishnasami Naidu v. Somasundaram Chettiar 30 M. 335 : 17 M.L.J. 95 : 2 M.L.T. 116 (F.B.) the Madras High Court appears to have decided the same question but on a somewhat different principle, and it appears from the judgment in that case that the real question is whether the judgment-debtor was a party to the proceeding in the claim case. In the course of the judgment of the Full Bench it is stated:
It was however, urged on behalf of the plaintiff that, in a case like the present, the order passed on the claim was one to" which the judgment-debtor (the third defendant) was a party, and, therefore, as between him and the plaintiff, the title to the whole property was in dispute and the value of the property, therefore, should be taken to be the value of the subject-matter of the suit. In the plaint there is no allegation that the third defendant was, in fact, a party to the claim proceedings, nor can we agree with the contention that he, as judgment-debtor, was, in point of law, a party to it.
7. If the case here is to be decided on the principle which seems to have influenced the minds of the learned Judges in the Madras High Court, it seems to m@ that undoubtedly the appellant must fail. It is noticeable in the first place how different is the language used by the plaintiff in para. 5 of his plaint. He does not allege that the judgment-debtor was a party to the proceeding but he does allege that the claim case was decided in the presence of and to the knowledge of the defendant. Now nowhere either in the pleadings, nor does it appear from either of the judgments, was this question raised, whether the judgment-debtor was in fact a party to the proceeding. It seems to me clear that the reason for that was that the plaintiff could not have succeeded in showing that the judgment debtor was a party to the proceeding. If that be the real point for the determination of this question, it seems to me, as I have said already, that the appeal must be concluded by that statement of fact. If the judgment-debtor was not a party it is obvious that he could not be bound by the order of the Court in the claim case, I would go further, however, in, deciding consonance with the decision in the case of Kedar Nath Chattierjee v. Rakhal Das Chatterjee 15 C. 674 that in fact in this case no order was made against the judgment-debtor: it was in fact an order made as between the decree-holder and the claimant. In those circumstances, in my opinion, the defendant was not precluded from setting up his title, and consequently the plaintiff's case must fail and his appeal to this Court must be dismissed with costs.
James, J.
8. I agree.