Patna High Court
Ramnandan Ram Kandu vs Harnandan Prasad on 2 February, 1920
Equivalent citations: 56IND. CAS.463, AIR 1920 PATNA 206
JUDGMENT Sultan Ahmed, J.
1. The plaintiff brought a suit for a declaration that the defendants have no title to the land in dispute, 2 acres 91 decimals in area, by virtue of their purchase at the certificate sale which was a nullity, and prayed for recovery of possession of the same, and also claimed mesne profits. The facts of the case will have to be shortly stated. A holding, consisting of 2 acres 91 decimals and carrying a rental of Rs. 9.9.6, was owned by one Bihari Sahu. After his death, Ramgulam and Raghubir were recorded in the landlord's sherista as the tenants of the holding. On the 16th of September 1914 the holding was attached in execution of a money decree, obtained on the basis of a handnote against Ramgulam, Jadunandan and Raghubir. On the 5th of January 1915 the property was sold in execution of this decree and was purchased by the plaintiffs. On the 8th of January 1915 the sale was made absolute, It appears that the Monza in which the disputed land lies is khas mahal estate. The ledger for 1908-1909 shows that a holding of 7 bighas 1 katta and 6 dhurs was recorded against Bihari Sahu, In 1910 the names of Ramgulam and Raghubir were recorded in respect of the holding. There being arrears of rent in respect of this holding, a certificate for the rental of 1910--1914 was issued against Ramgulam only. A copy of this certificate, with the notice under Section 7 of the Bihar and Orissa Public Demands Recovery Act, was served on Ramgulam only. The sale was held, but the sale certificate shows that only 2 aores 91 decimals was sold and purchased by defendants Nos. 1 to 4. It has been found by the Courts below that this 2 aores 91 decimals is the land in dispute and is a part of the holding of 7 bighas 1 kalta and 6 dhurs. It is obvious, therefore, that this is a case of competition between two purchasers, and the main question is, whose purchase is to prevail, whether the purchase of the plaintiff under the money decree or of the defendants' as purchasers at the certificate sale? It is conceded that if the defendants' purchase was in execution of a rent decree, in that case they will have the priority. Therefore, it is necessary to see what actually passed at the certificate sale, whether the right, title and interest only of the certificate-debtor or the holding itself. The holding which was in arrears was 7 bighas 1 katta 6 dhurs standing in the name of Ramgulam and Raghubir. But the certificate was issued against Ramgulam only; and what is more important is that the sale certificate shows that only 2 acres 91 decimals was sold. This means that the arrears due in respect of a whole holding were realized by the sale of a part of it. As a matter of fact, it was urged before me that this holding of 2 acres 91 decimals was not even part of the 7 bighas 1 katta 6 dhurs but the finding of the Appellate Court is quite dear on that point, and I must take it that 2 acres 91 decimals formed part of 7 bighas 1 katta 6 dhurs. In the case reported as Ram Kinkar Biswas v. Akhil Chandra Chowdhury 11 C.W.N. 350 at p. 351 : 5 C.L.J. 242 : 2 M.L.T. 137 : 35 C. 519 it has been held that if the decree holder in execution of the decree chooses to sell part of a holding though the decree was against the whole, the decree loses the character of a rent decree, and, therefore, the purchase of the defendants was in effect in execution of a money decree. Then, it appears that, though the decree was against the whole holding of 7 bighas odd kattas which stood recorded in the names of Ramgulam, Righubir and Jadunandan, only Ramgulam was made a party and it has been held in the oases reported as Jogeswar Rai v. Kesho Persad Singh 37 Ind. Cas. 262 : 1 P.L.J. 190, Krishna Das Bay v. Kali Tara Chowdhurani 44 Ind. Cas 80 : 22 C.W.N. 289, Beradar Singh v. Bacha Mahto 54 Ind. Cas. 39 : (1920) Pat. 9 : 5 P.L.J. 32 : 1 P.L.T. 55, that, if all the tenants are not made parties, the decree will not hi a rent decree but will be a money decree. Therefore, on that ground also, the plaintiff's purchess will prevail. Under Section 26 of the Bihar and Orissa Public Demands Recovery Act what the defendants purchased at the certificate sale was the right, title and interest of the judgment-debtor at the time of the sale. It was urged by the learned Vakil, appearing on behalf of the appellant, that even if the decree is found to be a money-decree he will have priority, became notice under the Bihar and Orissa Public Demands Recovery Act was prior to the attachment under the money decree. There is no force in the argument, and Section 26 is a complete answer to it. The certificate sale took place on the 17th April 1915, while the sale under the money decree took place on the 5th of January 1915. It was next contended that Ramgulam was sued not only in his individual capacity but in his representative capacity and the oases reported as Jeo Lal Singh v. Garga Pershad 10 C. 996 : 5 Ind. Dec. (N.S.) 664, Nitayi Behari Saha Paramanik v. Hari Govinda Saha 26 C. 677 : 13 Ind. Dec. (N.S.) 1033, Radha Pershad Singh Bahadur v. Ram Khelawan Singh 23 C. 302 : 12 Ind. Dec (N.S.) 202 and Jagat Chandra Dutt v. The Collector of Chittagong 18 Ind. Cas. 551 : 17 C.W.N. 1001 at p. 1002 : 17 C.L.J. 61 : 40 C. 64 were referred to. In my opinion these oases do not in the least help the appellant. To begin with, Ramgulam, it appear?, was the nephew and, therefore, a junior member of the family and, as such, could not be sued in his representative capacity at all. Secondly, there is no indication at any stage that he was sued in his representative capacity. In my opinion, the learned Subordinate Judge rightly dismissed the appeal of the appellant. I uphold his findings and dismiss the appeal with costs.