Calcutta High Court
Sailendra Nath Bose And Ors. vs Charu Chandra Bannerji And Ors. on 6 March, 1929
Equivalent citations: 118IND. CAS.341, AIR 1929 CALCUTTA 422
JUDGMENT
1. The suit out of which this appeal has arisen has been decreed by both the Courts below.
2. The plaintiff's case was as follows: There is a ganti jama comprised of about 900 bighas of land of which the holders were the defendants Nos. 1 to 23, Nos. 24 to 29 and one Kedar Ghosh, and No. 30, owning respectively 5/6th, and 1/12th, 1/12th shares therein. The defendant No: 31 for himself and also on behalf of his brother the defendant No. 32 obtained a maurashi mokarrari lease of a 5/6th share of the said jama from the defendants Nos. 1 to 23 in 1308 B.S. at a rental of Rs. 303 and odd. Subsequently the defendant No. 31 obtained settlements of a 1- 12th share from the defendants Nos. 24 to 29 and the said Kedar Ghosh at a rental of Rs. 30 and odd, and also a settlement of the remaining l/12th share from the defendant No. 30 at the same rental Thereafter the interest of Kedar Ghosh passed to the defendants Nos. 19 to 23 and the defendant No. 32 sold his interest to the defendant No. 31. Thus there were three separate jamas held by the defendant No. 31 under three sets of landlords. The defendant No. 31 mortgaged these three jamas to the plaintiff along with other lands by a registered deed executed in 1326 B.S. for Rs. 5,000. The landlords, however' ignoring the existence of the separate' jama instituted two suits for rent treating all the lands as constituting one jama and as bearing a total rental of Rs. 364 and odd. One of these suits was No. 829 of 1923 in which the defendants Nos. 31 and 32 were both impleaded as defendants. The other suit was No. 2308 of 1923 which was by all the landlords with the exception of defendant No. 21 and against the defendant No. 31 only having obtained decrees in the aforesaid suits the said defendants Nos. 1 to 30 put up the lands to sale alleging that they were the lands in arrears. The plaintiff then instituted the suit asking for the following reliefs : (ka) that a declaration may be made to the effect that the two decrees aforesaid are really money-decrees and the mahal in arrear cannot be sold with power to annul encumbrances under Chap. XIV of the Bengal Tenancy Act; (kha) that it may be declared that the lands attached form a maurashi mokarrari intermediate ganti jama and not a non-transferable ryoii jama; and (ga) that a temporary injunction may be granted restraining the defendants Nos. 1 to 30 from selling the attached properties by auction till the final disposal of the suit. Prayer (kha) appears to have been subsequently withdrawn and prayer (ga) was rejected by the trial Court inasmuch as there was no prayer for permanent injunction to the same effect. The Courts below have decreed the suit in plaintiff's favour in terms of prayer (ka).
3. Apart from the objection that in instituting the suit the plaintiff was crying before he was hurt--for it may just as well be that the mortgage would never be annulled even though the properties are sold with power to the purchaser to annul fall encumbrances--the suit for the declaratory relief which the plaintiff asked for in prayer ka in our opinion was not maintainable in law. The declaration asked for is in substance merely a declaration as to the legal effect of two decrees passed by the Courts. If this declaration was asked for as ausciliary or introductory to some other relief or reliefs also asked for, Section 42 of the Specific Beliefs Act would have had nothing to do with the matter and such a declaration would have rested on long established practice; but as the relief for this declaration stands alone it is one which must be authorised by that section, which does not sanction every form of declaration but only a declaration that the plaintiff is entitled to any legal character or to any right to any property: see Deokali Koer v. Kedar Nath 15 Ind. Cas. 427 : 39 C. 704 16 C.W.N. 838. The declaration asked for does not go anywhere near what Section 42 of the Specific Relief Act contemplates. Indeed it is not even alleged that the plaintiff's status or right as mortgagee has ever been denied. Again if it be assumed that such a declaration is permissible, it will be simply infructuous, without a relief in the shape of a permanent injunction for the Court in which the decrees are executed will in no way be bound by a declaration made by a different Court as to the character of the decrees under execution before it. It is well-established that a Court will never make a declaration that is likely to be infructuous.
4. It has been brought to our notice that the respondents Nos. 29 to 29a have died during the pendency of this appeal and their heirs have not been brought on the record. The appeal in so far as those respondents are concerned must be taken to have abated and to have proceeded without them. This, however, does not affect the appeal as against the other respondents which, in our opinion, must succeed, and it is accordingly allowed, the. decrees of the Courts below being set aside and the suit dismissed with costs in all the Courts.