Patna High Court
Ram Sunder Sahu vs Ram Narain Sahu And Ors. on 10 December, 1918
Equivalent citations: 48IND. CAS.936, AIR 1918 PATNA 79
JUDGMENT Coutts, J.
1. This, was a suit in respect of a certain temporarily settled estate called Chak Jalal Charidar Diari, bearing No. 11918 on the revenue roll of the District of Muzaffarpur. We do not know much about the history of this estate, but it appears to have been settled by Government for short terms of years from about the year 1842. In the year 1896 default was made in payment of revenue by the proprietors and according to the case of Ram Narain Sahu, the plaintiff, who was one of the defaulting proprietors, he purchased at the sale in the name of a servant of his, named Kuldip Narain. What was purchased at the sale was the right, title and interest of the settlement holders who were holding for a term of years. After the expiry of this term there were further settlements by Government with Kuldip Narain, the last settlement being for 3 years from 1st April 1913 to the 1st of March 1916 and the plaintiff's case is that all these settlements were really made with him in the name of Kuldip Narain. In December 1913 Kuldip was very ill and as he appeared to be dying the plaintiff alleges that in order to protect the property from the heirs of Kuldip, he got the latter to execute a Kobala in the names of his brothers. There "was delay in registration of the Kobala and Kuldip died before it was registered. After his death registration was, applied for but execution was denied by Kuldip's heirs and registration was refused. Subsequently in February 1914, Kuldip's minor son Harender Prosad, 'defendant No. 6, through his mother executed a Kobala in favour of Ram Sunder Sahu, defendant-No 5. Ram Sunder got his name registered and appeals to the Collector and Commissioner by Ram Narain were infructuous. Ram Sunder did not at once get possession, but in April 1916 he got settlement from Government for 3 years and in a case under Section 144, Criminal Procedure Code, he got possession. This Case was after the institution of the present suit. In his plaint Ram Narain asked that it might be declared that Chak Jalal was held in Milkiat by him, that Kuldip Narain was his Farzi-dar, and that the defendants had got no right in the Mahal. Further having been dispossessed in the case under Section 144 the plaintiff asked that he might be put back into possession. The defendants raised various pleas which appear sufficiently from the issues framed in the case, which were as follows:
1. Whether the Secretary of State for India in Council is a necessary party to the suit?
2. Whether Section 36 of Act XI of 1859 bars this suit? Is the plaintiff otherwise estopped from prosecuting the suit?
3. Whether the defendant 2nd party Ram Sunder Sahu is a bona fide purchaser for value and is the plaintiff estopped from disputing his title?
4. Whether Kuldip Narain was a Farzidar of the plaintiff and whether the plaintiff has got any title to the Mouza in suit?
5. Whether the defendant 1st party has been improperly made defendant in the suit?
6. Whether the defendants are entitled to confirmation of possession?
7. To what relief, if any, the plaintiff is entitled?
2. The learned Subordinate Judge found the first four issues in favour of the plaintiff. But in view of the fact that it was outside the jurisdiction of the Court to decide whether Government was justified in giving settlement to the defendant, he declined to give a decree for possession. He has, however, passed a decree declaring that the plaintiff was the real auction-purchaser of the temporarily settled Mahal, Chak Jalal Charidar Diara; that he was a settlement holder up to March 916, and that Kuldip Narain was his Farzidar. He however, held that the defendants Nos. 1 to 4 were not necessary parties. Against this decree the defendant Ram Sunder has Appealed and there is a cross-appeal against the decision of issue No. 5 declaring that defendants Nos. 1 to 4 had no interest in the property. The plaintiff's "cross-appeal has not been pressed and I would dismiss it without costs.
3. Two points have been argued in the appeal by Ram Sander Sahu: (1) that Section 41 of the Transfer of Property Act is a bar to the suit, and (2) that the decree is bad in view of the provisions of Section 42 of the Specific Relief Act. I will deal with the latter point first. The first clause of Section 42 of the Specific Relief Act runs as follows: "Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right; and' the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief." The question, in the present case, is whether the plaintiff is entitled to any legal character or to any right as to any property which would entitle him to a declaration such as has been given. With regard to this point the portion of the decree with which we are concerned, runs as follows: "It may be declared that the plaintiff is the real auction-purchaser of the temporarily settled Mahal, Chak Jalal Charidar Diara, and that he is the settlement holder up to March 1916, and Kuldip Narain Singh was his Farzidar." On the face of it this is not " a declaration that the plaintiff is entitled to any present legal character or that he has any present right to the property in dispute. The learned Subordinate Judge realised this, for he says in his judgment: "It may at first appear that it (the declaration) can be of no practical use to the plaintiff", but he continues as follows: "as Chak Jalal is a temporarily settled estate, the property of a private individual, and as some right is reserved to the last settlement holder as is indicated by Kuldip 1 Narain's Patta, Exhibit 16, clause 4, namely, the right to receive some Malikana in case of refusal to take fresh settlement, and as it further indicates that settlement would be offered in the first instance to the last settlement holders, I think the declaration will be of great use to the plaintiff in approaching the Government and asking for a temporary settlement with him after the expiry of the term of the present settlement, even if it is conceded that he cannot do so now." Now it is not and it cannot be contended that Government would either with or without this declaration be bound to give the plaintiff a settlement and it is in fact almost certain that Government, when they knew the facts, would not give a settlement. They would certainly not give a settlement if Kuldip Narain is not his Farzidar and even assuming, as the learned Subordinate Judge has found, that Kuldip Narain was his Farzidar, he is a coproprietor who has gone behind the backs of his koshers and has got a settlement by means of a Farzi trans action. This would certainly not find favour with Government and in fact it would appear that it has not done so, for settlement has, as 1 have already said, been made with the defendant Ram Sunder in 1916, who has also got his name registered in the Collectorate. The decree, therefore, in so far as any settlement is concerned, could be nothing more than a recommendation to Government. It was no declaration of a present legal character or a legal right, and it is not within the scope of Section 42 of the Specific Relief Act.
4. The learned Subordinate Judge, however, seems to think that by reason of a certain clause in Kuldip Narain's Patta of 1910 the declaration which he has given will assist the plaintiff in getting Malikana. The clause runs as follows: "That at the end of the aforesaid period of settlement you stall have the right to a renewal of the settlement on the revenue that may be fixed. If you do not take the settlement on the revenue that be then fixed, you shall be entitled to receive Malikana at the usual rates." The plaintiff, however, never asked for a declaration that he was entitled to receive Malikana nor has any such declaration been made. All that the Subordinate Judge intends by the declaration is that it shall help the plaintiff in the event of his making a claim for Malikana and apparently conveying a pious hope that he may get it. The declaration then in regard to this also is nothing more than a recommendation to Government from the Subordinate Judge and is not within the scope of Section 42. Apart from this there is, in my opinion, no ground for the finding of the Subordinate Judge that the plaintiff can have any right to re-settlement Malikana. He relies on the Patta of 1910, but the Patta under which Kuldip was holding when he died, was a Patta of 1913, which has not been produced. Ram Sunder's Patta of 1916, Exhibit T, however, has been produced and it contains no provisions for either resettlement or payment of Malikana and there is nothing to show whether the Patta of 1913 was similar to the Patta of 1910 or to that of 1916. In fact as the onus was on the plaintiff and as he has not produced the Patta of 1913, there is a suspicion that if he did produce it, it would be against him. In any case in the absence of the Patta, I am not prepared to accept the view of the learned Subordinate Judge, that there is any provision in it for either Malikana or for settlement.
5. I now come to the question whether Section 41 of the Transfer of Property Act is a bar to the suit. This section runs as follows: "Where, with the consent, express or implied, of the person interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it, provided that the transferee, after taking reasonable care, to Ascertain that the transferor had power to make the transfer, has acted in good faith." So far as the first part of the section is concerned, it is not even suggested that the plaintiff has any case. The question is whether, as required by the proviso, Ram Sunder took reasonable care to ascertain that the transferor had power to make the transfer and acted in good faith. On this point, it seems to me, there can be no doubt. Ram Sunder says that at the time he made the purchase he made inquiries. about the title of Kuldip Narain and what he did was to consult Register D, to make inquiries from the raiyats of Chak Jalal and to consult his Mukhtear named Badri Narain. The register showed the name of Kuldip and Badri Narain got for him copies of documents relating to Chak Jalal. These copies, he says, related to a suit between Kuldip Narain and Ramdhari, to a dakhil Kharij case between Ram Charitar and Ram Narain and to a Katband case between Kuldip and the tenants of Chak Jalal. There was also a copy of a deposition and a copy of judgment in a Balabandi case between Kuldip Narain and Lalji Babu. Now we have on the record most of these documents. The first of them to which I shall refer is the deposition of Ram Narain in the dakhil kharij case with Ram Charitar and related to a village called Daudpur, which the applicant said was owned by him and was in his possession. In the course of that deposition, which was made before the Sub-Deputy Collector on 1st October 1910, Ram Narain Stated.--"Village Chak Adam is in the name of Gobind Shah. No other milkiat excepting the village in dispute stands in others' name as benami." This clearly indicates that the plaintiff had no Malikana right in the lands in the present suit Chak Jalal. Again on 16th March 1911 deposing to another suit the plaintiff stated: "Mouza Chak Jalal Diara formerly belonged to me. It was sold for arrears of Government revenue. Kuldip Narain is in possession of the Monza as auction purchaser since it was sold for arrears of Government revenue. I can swear I have no concern with the present settlement of the, Mouza. "
6. The next document is Exhibit N, a plaint in a suit between Kuldip Narain and Ramdhari. The suit was in respect of a piece of land in Chak Jalal. The suit was compromised and nowhere was there any suggestion made that Kuldip Narain was a, Faizidar of Ram Narain or that Ram Narain had anything to do with the Mouza.
7. The next document to which I will refer is a judgment in a. suit brought by Kuldip against one Bindeswari Prosad, who was the proprietor of a neighbouring Mouza, for a certain piece of land which Kuldip Narain claimed as a part of Chak Jalal. In that suit one of the issues was whether the plaintiff was a benamidar of Ram Narain Sahu and after going into the evidence very fully the Subordinate Judge, who heard the suit, found that Kuldip Narain was not the benamidar of Ram Narain,
8. This then was the evidence on which Ram Sunder relied, and on these documents it is difficult to understand what other conclusion he could have arrived at than that Kuldip Narain was the real settlement holder. I fail also to understand what more he could have done to ascertain that the transferor had power to make the transfer. The learned Subordinate Judge has said that as Badri Narain has not been examined, he has no materials to decide whether the papers which were read over to Ram Sunder were sufficient to lead a reasonable man to be satisfied with what they embodied. But, as I have already pointed out, these documents are on the record and they are, in my opinion, more than sufficient to satisfy any reasonable man that Ram Narain had nothing to do with the Chak Jalal estate. The learned Subordinate Judge seems to think that Ram Sunder Sahu should have insisted on the production of the original sale-certificate by which Kuldip Narain purchased. But there was Very little object in this because this was a temporarily settled estate. The sale-certificate merely transferred the right, title and interest' of the remainder of the' temporary settlement and Ram Sunder was perfectly justified in relying on the terms of the settlement which was running at the time when he made the purchase, and this he knew was in the name of Kuldip Narain. It appears then that up till the time when Ram Sunder applied for registration of his name, Ram Narain had never suggested that he was the real owner and in fact had on oath specifically denied his connection with the Mouza. Under these circumstances, I am satisfied that whether Kuldip Narain 'was the Faizidar of Ram Narain or not, Ram Sunder made all reasonable inquiries and acted in good faith. For the above reasons therefore, I would set aside the decree of the learned Subordinate Judge and would decree this appeal with costs.
9. In conclusion I would note that Ram Narain has committed gross perjury. In his examination on oath before the Sub Deputy Collector Babu Suresh Chander' Deb on 1st October 1910 be stated that "Village Chak Adam is in the name of Gobind Shah. No other milkiat excepting the village, in dispute stands in other's name as benami" Again in his statement before the Munsif of Hajipur on 16th March 1911 he stated: " Mouzi Chak Jalal Diara formerly belonged to me. It was sold for arrears of Government revenue. Kuldip Karain is in possession of the Mouza as auction-purchaser, since it was sold for arrears of Government revenue. I can swear that I have no concern with the present settlement of the Mouza." In the present suit Ram Narain has stated on oath before the Subordinate Judge on 22nd January 1917: " Chak Jalal was sold for arrears of revenue in 1896. It was I who purchased it. It was in the name of my servant Kuldip Narain that I purchased." It is impossible to reconcile these statements and I would direct that he be called on to show cause why he should not be prosecuted for perjury.
Roe, J.
10. I entirely agree that the plaintiff has no present title in this estate and that, therefore, he is not entitled to a decree under the Specific Relief Act.
11. I also agree that the plaintiff should be prosecuted for perjury. Let notice be issued to him to show cause why a direction for his prosecution should not be made under Section 476, Criminal Procedure Code. The 6th of January nest may be fixed for hearing.