Patna High Court
Badri Chaudhuri And Ors. vs Harbans Jha And Ors. on 16 August, 1919
Equivalent citations: 53IND. CAS.114, AIR 1919 PATNA 447
JUDGMENT Jwala Prasad, J.
1. The plaintiffs are appellants in this case. The plaintiffs Nos. 1 and 2 are the sons of one Mohan Lal. Plaintiffs Nos. 3 and 4 purchased a portion of the property from plaintiffs Nos. 1 and 2 by means of a kobala, dated the 26th April 1912. The plaintiffs brought the present suit for confirmation of possession and in the alternative for recovery of possession of the properties in suit on declaration of their title thereto and on holding that the defendants are merely Farzidars having no title in the properties in suit, nor have they ever been in possession thereof. Mohan Lai, the father of plaintiffs Nos. 1 and 2, executed an unregistered mortgage-bond in the Farzi name of Babunandan Jha on the 25th Chait 1266. Babunandan Jha on the basis of the said mortgage obtained a Farzi decree in execution of which he purchased the properties in suit on behalf of Mohan Lal. These properties consisted of some shares in four villages; 7-gandas 2-cowris share pokhta out of 16-annas shars of Moaza Machheta, Tauzi No. 3403, and 13-gandas 1-Cowri and 1 K. pokhta out of 16 annas of a Mouza called Awksi Madhubani, bearing Tauzl No. 3490, 5 gandas 3 cowris pokhta share in Maoza, Nadiani, Tauzi No. 13466, and A-gandas pokhta share in Mauzi Nadiani bearing Tauzi No. 3431. The latter two shares in village Nadiani are covered by suit No. 353, Second Appeal No. 155. The shares in the former two are covered by Suit No. 311, Second Appeal No. 141. The facts giving rise to the cause of action in both the suits are almost the same. The suits and the appeals in the Courts below were tried analogously and consequently the second appeals in this Court were heard together and it will be sufficient to dispose of all these second appeals by one judgment.
2. The plaintiffs' case is that at the time when the mortgage bond was executed in the Farzi name of Babunandan Jha, who was the father's sister's son of Mohan Lai, there was a decree for rent against Mohan Lal of the Maharajah of Darbhanga amounting to Rs. 7,000. The said bond was executed in order to save the properties from the Court sale in execution of the said decree of the Maharaja of Darbhanga. The decree of Babunandan Jha and the subsequent auction sales in execution thereof were all the result of the same intention and have been styled in the plaints as collusive transactions." The translation in the paper book of the plaint is not accurate.
3. In paragraph 5 of the plaint it is stated that in order to maintain the Farzi nature of the transactions the defendant No. 1's name was designedly recorded in the Collectorate in respect of the said shares. The plaintiffs assert, however, that in spite of the said Farzi transaction the plaintiffs' ancestor and thereafter the plaintiffs continued to be in possession of the properties in suit, and in the year 1900, when the survey operations were undertaken, the plaintiffs preferred an objection to the survey authorities praying that their names be entered in the survey records and the names of the defendants be expunged. The survey authorities in respect of all the villages in question found that the transactions by virtue of which the names of the defendants or their ancestors were recorded in the Collectorate Were all Benami and Farzi and that the title remained all along with Mohan Lal and after his death, with the plaintiffs.
4. In respect of the villages comprised in Suit No. 311 corresponding to Appeal No. 141, the survey authorities definitely came to the conclusion after enquiry on the spot that the said shares were all along in the uninterrupted possession of the plaintiffs and the defendants had never been in possession of the said shares by virtue of the Farzi entries in the Government records or on the strength of the auction purchase. In respect of the properties comprised in Suit No. 303 corresponding to Appeal No. 155, the Assistant Settlement Officer found that Mohan Lal was in possession of the lands but Harbans Jha son of Babunandan was collecting rents in respect of the lands held by the defendants. The survey authorities, however, did not actually cause mutation of names, inasmuch as the names of the defendants were recorded in Register "D" of the Collector, but made a note of the aforesaid findings in the Khewat prepared by them. Thereafter the plaintiffs applied in the Collectorate for mutation of their names in place of the names of the defendants, but their application was rejected on the 5th of May 1913 in respect of the villages in Suit No. 311 and on the 21st of May in respect of the villages in Suit No. 303. On the strength of the orders of the Land Registration Deputy Collector the defendants caused some interference in the possession of the plaintiffs. The plaintiffs accordingly brought the present suits for declaration of their title and for a further declaration that the defendants were mere Farzidars, and for confirmation of their possession.
5. The defendants are the descendants of Babunandan Jha, They resisted the plaintiffs' claim. The name of Babunandan Jha in whose name the mortgage-bond was executed and the property was purchased at the auotion-sale was originally recorded in the Collectorate in respect of the properties in suit. After his death his two sons by different wives Harbans Jha and Chatur Jha were recorded in the Collectorate in place of Babunandan Jha. The suits have been brought against Harbans Jha and Makund Jha son of Chatur Jha and their respective descendants. Two written statements were filed in the suits, one on behalf of the defendants Nos. 1, 3, 4, 5, 6, 7, 8, 9, 10, and 11 and the other on behalf of Makund Jha, defendant No. 2. But the pleas, taken in the written statements are practically the same, in both. The defendants denied that Babunandan Jha was the Farzidar of the plaintiffs' ancestor Mohan Lal and asserted that the mortgage-bond, the decree and the auction purchase in execution of that decree were all bona fide and that Babunandan Jha purchased the properties for himself and that he was in possession of them in his own right and after his death the defendants have been in possession of the properties in suit. The pleas taken by the defendants were that the suits were barred by Sections 66 and 47 of the Civil Procedure Code and by limitation. Upon the pleas of the defendants among others the following issues were framed by the, learned Munsif:
(1) Are these suits barred by Sections 66 and 47 of the Code of Civil Procedure?
(2) Are the, defendants of these suits Zenamidars of the plaintiffs?
(3) Can these suits for confirmation of possession lie?
(4) Have the defendants acquired any right to the disputed properties by adverse possession for over 12 years?
6. The Munsif decided the aforesaid issues in favour of the plaintiffs and against the defendants. The Munsif found that the mortgage bond of 1869 was merely a "paper transaction" and that the decree obtained on the basis of the mortgage was only a collusive one and that it created no right in. favour of the defendants. He also held that Mohan Lal and thereafter the plaintiffs Have been in possession of the disputed properties all along and that the said transactions in the name of Babunandan Jha, the ancestor of the defendants, did not in fact cause any change, in the title or possession of the properties, which the plaintiffs had prior to and at the time of the said transactions. He overruled the defendants pleas in bar and held that the suit was not barred by limitation, nor was the suit affected by Sections 66 or 47 of the Civil Procedure Code. He accordingly decreed the suit of the plaintiffs, declaring their title to the lands in suit and confirming their possession.
7. On appeal by the defendants the learned Judge agreed with the Munsif so far as the findings regarding the pleas in bar were concerned. The only point that was pressed before the learned Judge on behalf of the appellants was that the suits did not lie. The learned Judge upheld this contention on the ground that the plaintiffs' ancestor executed the mortgage-bond and caused the property to be sold and purchased in the name of Babunandan Jha, the defendants' ancestor with the view of defrauding the creditor, the Maharaja of Darbhanga, in. respect of the decree of rent already obtained and that the intended fraud was carried into effect inasmuch as the decree of the Maharaja of Darbhanga was only partially realised and the rest was time-barred. The learned Judge, therefore, held that the, plaintiffs were not entitled to a declaration that the said transactions were Benami and he accordingly upset the decision of the, Munsif and dismissed the suit of the plaintiffs.
8. Against that decision the plaintiffs came, in second appeal to this Court. In order, to dispose, of the appeal this Court thought it necessary to have the decision of the. Court below on two issues, of facts, and, accordingly by its order of the 14th Mar oh 1919 the case was remanded to the Court, below for a determination of the issue, framed by this Court. The issue was:
The plaintiffs' cause of action being dated, the 5th May 1913 with regard to a declaration which they, desire and the 15th Chait, 1321 with regard to the actual dispossession, against which they seek relief, were the plaintiffs in possession of the land adversely to the defendants for 12 years prior to the 5th May 1913, or for 12 years prior to the 15th Chait 1321?
9. The learned Judge has now remitted his decision upon the said issue in a very careful and detailed judgment. He has come to a clear and definite finding of fact which may be quoted as follows:
The respondents never had a good title and were never in possession of the disputed properties. There can be no reasonable doubt that the whole series of transactions was Farzi, and I accordingly, find that the appellants have been throughout in possession, of the, properties, in suit adversely to the defendants-respondents down, to the date, of their dispossession on or about the 15th Chait 1321.
10. The, learned Counsel, on behalf of the, respondents contends that, this finding of fact though against the respondents, does not entitle the plaintiffs to a decree in the suits and that in spite of the aforesaid findings the judgment of the District Judge before remand should be upheld. Reliance has been placed by the learned Counsel upon the decision of their Lordships of the Judicial Committee in the case of Petherpermal Chetty v. Muniandy Servai 35 C. 551 : 10 Bom. L.R. 590 : 12 C. W. N. 562; 5 A. L. J. 290; 7 C. L. J. 528; 12 Bur. L. R. 108; 18 M. L. J. 277; 35 I. A. 98; 4 M. L. T. 12; 4 L. B. R. 266 (P. C.). The actual decision in that case was that where the purpose of the fraud is not effected, there is nothing to prevent the plaintiff from repudiating the transaction as Benami and recovering possession of the property. Lord Atkinson in delivering the judgment observed as follows: "to enable a fraudulent confederate to retain property transferred to him in order to effect a fraud, the contemplated fraud must, according to the authorities, be effected. Then and then alone does the fraudulent grantor or giver lose the right to claim the aid of the law to recover the property he has parted with." Applying this Mr. Dutt on behalf of the respondents says that according to the findings of the District Judge in this case, the intended fraud to defeat the creditor was carried into action and hence the plaintiffs cannot seek the assistance of the Court to give a decree to them in respect of the property in suit. The principle will apply only when the plaintiff seeks to receive possession of properties lest by him on account of his fraudulent and Benami transaction. In the present case the plaintiffs do not invoke the aid of the Court to restore them to possession of the property which they lost by virtue of the Farzi transactions. The plaintiffs' cage is that no change in the status quo of the properties in any way occurred on account of the said transactions and that as a matter of fact there was no transfer of the properties in question to the defendants but that there was only a paper transaction and as that paper transaction was threatened to be used by the defendants against their undisputed title and the possession which have been found concurrently by the Courts below in their favour, the plaintiffs simply want a declaration of the true existing state of affairs, namely, that they are the real beneficial owners of the properties and that have been in possession all along of the properties and that the defendants have no concern at all.
11. The case of Banka Behary Dass v. Raj Kumar Dass 27 C. 23; 4 C. W. N. 299; 14 Ind. Dec. (n. s.) 153 no doubt lends some colour to the contention of the learned Counsel. But in the case of Jadu Nath Poddar v. Rup Lal Poddar 33 C. 987; 10 C. W. N. 650; 4 C. L. J. 22; after a detailed review of the authorities on the subject, Mookerjee, J., declined to accept entirely the broad proposition laid down in the case of Banka Behary Dass v. Raj Kumar Dass 27 C. 23; 4 C. W. N. 299; 14 Ind. Dec. (n. s.) 153 and at page 983 of the judgment observed: "with all respect I am unable to see how the view taken by this Court in the case of Banka Behary Dass v. Raj Kumar Dass 27 C. 23; 4 C. W. N. 299; 14 Ind. Dec. (n. s.) 153 enables a party to a dishonest trick by which his creditors may have been defrauded to get himself reinstated when his purpose has been served. On the other band, it seems to me that if the Court refuses to aid the plaintiff who has made a fictitious transfer of his property from an improper motive but has not carried into effect his intention, the Court really becomes an instrument to aid the defendant in his fraudulent claim to possession contrary to the real agreement with the plaintiff." Even if the proposition laid down in Banka Behary Dass v. Raj Kumar Dass 27 C. 23; 4 C. W. N. 299; 14 Ind. Dec. (n. s.) 153 be accepted, the case is distinguishable from the present one; inasmuch as the defence taken in that case was that after the Farzi conveyance in question two of the creditors of the plaintiffs attached some of the property conveyed to which the defendants preferred a claim and the properties were released from the attachment. In the present, case the defendants have not raised any such plea. Their defence throughout has been that there was no decree of the Maharaja of Darbhanga and that there was no intention to defraud any creditor by means of the mortgage and the decree in question. The plaintiffs also did not make any such allegation in the plaint that any creditor was as a matter of fact defrauded or that the object of the fictitious transaction was to defraud any creditor of the mortgagor Mohan Lal. All that the plaints averred is that there was at the time the mortgage-bond was executed a decree of the Maharajah of Darbhanga and in order to save the properties from the sale the said mortgage-bond was executed in the Farzi name of the defendants' ancestor Babunandan. There was no issue raised in the trial Court as to whether the fraud was carried into effect and whether the Maharaja of Darbhanga or any other creditor of the plaintiffs' ancestor was as a matter of fact defrauded by means of the said transaction. Upon the pleadings in the present case the decision in Banka Behary Bats v. Raj Kumar Dass 27 C. 23; 4 C. W. N. 299; 14 Ind. Dec. (n. s.) 153 is distinguishable and cannot be applied, nor can it be held that the plaintiffs are not entitled to the declaration that they have sought in this case.
12. I do not think it was open to the District Judge, when it was neither the case of the plaintiffs nor of the defendants, nor was there any issue upon the point, to hold that the fraud was carried into effect and the Maharaja of Darbhanga was defrauded in respect of his decree. We have looked into the sale certificates Exhibits 23, K and 328 and the previous deposition of one of the plaintiffs, but we do not find anything in them to shew that the Farzi transactions were used for the purpose of laying any claim in execution of the Maharaja's decree or that on account of the said transactions the execution of the decree failed. The endorsements simply shew that the sale certificates were filed in some Court, but the nature of the case and the purpose of the filing are not shown. The order sheet in the claim case and the objections, if any, made to the execution of the decree were necessary to be filed to raise the plea. Again the depositions only shew that a part of the decree was satisfied and the rest was time-barred. There is a big gap to shew that the Faizi transactions in question were the cause of this result. There is no evidence thereof to shew that the fraud was carried into effect and the aforesaid evidence relied upon can only be a matter of surmise and supposition. If the lower Appellate Court thought that the point was necessary to be investigated into it ought to have framed an issue to allow the parties to give evidence on the point. If the finding of the Judge is not accepted, then there can be no question that the fraud was not carried into effect and hence upon the aforesaid authority of the Privy Council case of Petherpermal Chetty v. Muniandy Servai 35 C. 551; 10 Bom. L. R. 590; 12 C. W. N. 562; 5 A. L. J. 290; 7 C. L. J. 528; 12 Bur. L. R. 108; 18 M. L. J. 277; 35 I. A. 98; 4 M. L. T. 12; 4 L. B. R. 266 (P. C.), the plaintiffs are entitled not only to confirmation of possession but to recover possession if they had lost possession on account of the Farzi transactions. Even if the finding of the learned Judge be accepted as a finding of fact, the plaintiffs, being in possession for over 12 years, have acquired title by adverse possession and are entitled to the declaration sought for.
13. Again there was no question in the case of Banka Behary Dass v. Raj Kumar Dass 27 C. 23; 4 C. W. N. 299; 14 Ind. Dec. (n. s.) 153 as to the effect of the continuous possession of the plaintiff for over 12 years prior to the institution of the suit. The Farzi conveyance in that case was executed in 1889 and the suit was brought in 1893. During a short period of 4 or 5 years no question of acquisition of title by virtue of adverse possession of any of the parties could arise. In the present case plaintiffs have been in possession of the properties from 1859 up to the present moment a period of 60 years not to speak of 12 years which under Section 28 of the Limitation Act is sufficient not only to extinguish the right and title of a person to a property but to create a complete title in favour of the person who has been in possession for over 12 years. The point appears to me to have been settled, and it if, therefore, needless to quote any authority in support of it. It is sufficient to quote the judgment of Mookerjee, J., in the case of Nawab Bahadur of Murshidabad v. Gopinath Mandal 6 Ind. Cas. 392; 13 C. L. J. 625, where it was laid down that the effect of Section 28 of the Limitation Act is not merely to extinguish the title of the rightful owner of the land but also to create a title by negation in the occupant, in which he can actively assert if he loses possession even as against tie true owner. That principle will apply with greater force in the case of a rightful owner being in possession of the property for over 12 years in spite of his having executed a Farzi transaction for some ulterior motive. The case of Govinda Kuar v. Lala Kishun Prosad 28 C. 370 would seem to appear to be on all fours with the present case, In that case it was held that where the ostensible transferee never had any exclusive possession of the property in question, which was for a great many years treated as a part of the joint family property, and which was enjoyed by the joint family (of which the plaintiff was now the sole surviving member) for more than 12 years before suit, the plaintiff was entitled to have a declaration of his right to the property and to confirmation of his possession thereof in spite of the fact that he had executed a colourable transfer for the purpose of defrauding his creditors and where his intention was wholly or partially carried into effect. Mr. Dutt, however, seeks to distinguish this case by contending that in that case the property was joint family property and the fraudulent conveyance was by a member of the family. I fail to appreciate the distinction in principle. In the present case the plaintiffs' case is that their father was in possession of the property in suit and thereafter they have been in possession all along. This Court, while remanding the case for a finding upon the said issue, had clearly in view the principles enunciated in the case of Govinda Kuar v. Lala Kishun Prosad 28 C. 370. It was then understood clearly by this Court and at the Bar that the Ending of fact upon the issue remitted would dispose of the case and that if it was found by the Court below that the plaintiffs were in continuous possession for over 12 years before their possession was interfered with, they would be entitled to a decree in the suit. On fuller construction of the law on the subject and upon a true construction of the pleadings in the case the view taken by this Court before remand appears to hare been confirmed.
14. The plaintiffs are, therefore, entitled to the reliefs granted to them by the learned Munsif. The result is that the decision of the District Judge is set aside and that of the Munsif is restored. The appeal is allowed with costs of the remand and also those assessed in the decree.
Foster, J.
15. I agree.