Full Judgment Text
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PETITIONER:
SEN (A.K.)
Vs.
RESPONDENT:
THE STATE OF WEST BENGAL AND ANR.
DATE OF JUDGMENT18/04/1978
BENCH:
ACT:
Civil Procedure Gode, (Act V), 1908-Order XXI Rule 94-
Certificate to the purchaser granted by the Court in the
case of a sale in execution of money decree-scope of sale
under Rule 94.
HEADNOTE:
The original plaintiff one Kumud Bala Dasi filed a Title
suit No. 82/195 with the permission of the High Court of
Calcutta against the appellant claiming, recovery of
possession of the suit land and alleging that what was
attached by, the executing court for realisation of the
money portion of the decree obtained by the Official
Receiver in an earlier Title Suit No. 317/1939 filed by him
and what was sold were the structures standing on the suit
land and not both the land and the structures thereon. She,
therefore, prayed for a declaration to that effect and
consequently delivery of vacant and Khas possession of the
suit land to her by removing the structures, standing
thereon and to make over to her the sum unjustly realised by
the appellant by letting out the said structures. ’The
trial Court dismissed the suit, but the High Court on appeal
reversed the judgment of the trial Court, gave’ the
declaration sought for and directed that on her depositing
the value of the structures to be determined by the trial
Court. the same would also become her property and she would
get possession of the entire property and in default of the
said deposit her suit would stand dismissed.
Dismissing the appeal by certificate, the Court.
HELD : 1. In cases of this nature what has got to be
ascertained is what is the nature of the right, title and
interest which was really intended to be sold in execution
of the decree. Any misapprehension in that behalf on the
part of the Court or the purchaser cannot affect the true
legal effect of the sale.
In the present case, the right, title and interest of Kumud
Bala Dasi in the suit and being the subject matter of
pending litigation at the time of sale, in question what was
sought and intended to be sold were the structures
simpliciter, which meant only the materials of the
structures and not the site underneath or appurtenant
thereto nor the permanent tenancy rights in the site. On a
conspectus of all the facts and circumstances of the case,
the sale certificate cannot be construed as Conferring any
right, title or interest on the appellant with respect to
the permanent tenancy rights in the suit land which was
underneath and, appurtenant to the structures. [689 B-C, D-
E]
Pettachi Chettiar v. Sangili Veera Pandia, L.R. 14 I.A. 84 @
85; followed.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1644 of
1968.
From the Judgment and Order dated 19-9-1961 of the Calcutta
High Court in Appeal from Original Decree No. 32/56.
A. K. Sen and P. K. Ghosh for the Appellant.
P. K. Chatterjee, Produyot Kumar Chakravarti and G. S.
Chatterjee for the Respondent.
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal by certificate granted by the
High Court at Calcutta under sub-clauses (a) and (b) of
clause (1) of
687
Article 133 of the Constitution read with section 110 of the
Code of Civil Procedure arises out of a suit, being Title.
Suit No. 92 of 1952 instituted on July 8, 1952 in the Sixth
Court of the Subordinate Judge at Alipore, District 24-
Parganas, West Bengal, by Kumud Bala Dasi, the original
plaintiff, against the appellant, who is the Official
Receiver of the High Court, as the principal defendant, and
Birajabala Debi, widow of Probodh Chandra Chatterjee, as
proforma defendant, for declaration that she had permanent
kayami Mourasi Mukarari Title to the suit land measuring 6
Cottas, 4 Chhataks and 4 Sq. ft. situation Barrackpore Trunk
Road within District 24-Parganas, West Bengal and that the
possession of the appellant thereon was illegal and wrongful
as well as for Khas possession of the said land after demo-
lition and removal of the structures and shop rooms standing
thereon and for mesne profits.
The case as put forth by the plaintiff was that property
measuring about 9 Cottas, 12 Chhataks detailed in Schedule
’Ka’ forming annexure to the plaint was held by one
Dayamayee as a tenant under the Official Receiver of the
High Court at Calcutta, who was appointed as such in the
equity suit of the former Supreme Court at Calcutta between
Gopalmoni Dasi and Ramonath Thakur, on a rental of Rs.
33/12/- annas per annum; that Dayamayee died leaving a will
bequeathing the aforesaid property to her brother, Ram
Chandra Jana, who obtained probate of the will and got into
possession of the said property; that on the death of Ram
Chandra Jana, the said property was inherited by his only
son, Jiban Krishna, from whom she (the plaintiff) purchased
the same in the benami of Probodh Chandra Chatterjee,
deceased husband of Birajabala Debi, the proforma defendant,
by a registered kobal a dated May 9, 1922 for a con-
sideration of Rs. 1,500/-; that thereafter she continued to
remain in possession of the said property and to pay the
aforesaid annual rent and not only affected improvements on
the already existing structures but erected several other
structures as well; that by making false representations
that the said 9 Cottas and 12 Chhataks comprised two plots.
one of which i.e. the suit land measured 6 Cottas, 4
Chhataks and 4 Sq. ft., the predecessor of the appellant got
a separate number allotted to it by the Corporation; that
the Official Receiver instituted Title Suit No. 317 of 1939
against her in the 1st Court of the Munsif at Sealdah
claiming arrears of rent in respect of the aforesaid ’Ka’
schedule property as also the amount paid by way of taxes
and her eviction therefrom which was decreed against her on
May 3, 1941; that aggrieved by the said decision, she
preferred an appeal in so far as it related to her eviction
from the; said property but did not prefer an appeal against
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the other part of the decree relating to rent and taxes;
that the said appeal was decided and decreed in her favour
on March 11, 1942 by the 2nd Additional Subordinate Judge,
Alipore. who held that the. tenancy held by her being a per-
manent one, she was not liable to be evicted from the
property; that on July 22, 1941, the Official Receiver took
out execution of the money portion of the decree obtained by
him in Title Suit No. 317 of 1939 in the First Court of the
Munsif at Sealdah praying that the
688
decretal amount be got realized by attachment and sale of
her immovable property comprised in premises No. 27/H/4,
Barrackpore Trunk Road standing on approximately 6 Cottas, 4
Chhataks and 4 Sq. ft. of the aforesaid land viz. one-
storeyed four-roomed pucca structure with fittings and
fixtures and two-roomed structure on the first floor, seven
shop rooms with fittings and fixture& and all interest
therein valued approximately at Rs. 1601-; that on August 8,
1941, the said property belonging to her was attached by
means of a prohibitory order under Order 21, Rule 54 of the
Code of Civil Procedure and was sold and purchased by the
appellant himself on January 5, 1942; that after various
proceedings the said sale of her property was confirmed and
sale certificate was issued in favour of the appellant on
August 21, 1944; that though on the appellants making an
application for possession of the aforesaid property, she
filed an application under section 47 of the Code of Civil
Procedure contending therein that under the aforesaid decree
obtained by him, the appellant could at best be entitled to
remove the structures alleged to have been purchased by him
but he could not have any right to the land belonging to
her, the same was rejected vide Order dated February 21,
1946; that she preferred an appeal against the order dated
February 21, 1946 but the same, was dismissed on June 20,
1946; that she also took the matter to the High Court in
second appeal which was also dismissed on April 24, 1947;
that thereafter she made another application under section
47 of the Code of Civil Procedure reiterating, therein that
the appellant had purchased only structures and not the land
on which they stood and the appellant was not entitled to
get possession of the land but that too was dismissed
whereafter the appellant illegally obtained possession of
the buildings and structures standing on the said 6 Cottas,
4 Chhataks and 4 Sq. ft. of land together with the land
itself on March 11, 1948; and that her, ’repeated requests
and notice under section 80 of the Code of Civil Procedure
to the appellant to deliver vacant and khas possession of
the suit land to her by removing the structures standing
thereon and to make over to her the sum unjustly realised by
him by letting out the said structures having proved
ineffective, she applied to the High Court at Calcutta for
permission to file a suit for vindication of her title which
was granted by the High Court vide its order dated May 15,
1952 pursuant whereto she brought the aforesaid Title Suit
No. 82 of 1952.
The suit was contested by the appellant on various grounds
and was ultimately dismissed by the trial court by its
judgment and decree dated May 27, 1952. Aggrieved by the
decision of the trial court, the original plaintiff
preferred an appeal to the High Court at Calcutta. The High
Court allowed her appeal, reversed the judgment of the trial
court, gave the declaration sought for by the plaintiff and
directed that on her depositing the value of the structures
to be determined by the trial court, the same would also
become her property and she would get possession of the
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entire property i.e. of the land and the structures by
execution of the decree, if necessary, and in default of the
said deposit, her suit would stand dismissed. Aggrieved by
the said judgment and decree, the appellant applied to the
High
689
Court for leave to appeal to this Court and issue of the,
requisite certificate which was granted. This is how the
present appeal is before us.
Appearing on behalf of the appellant, Mr. Ashok Sen has con-
tended that the High Court has erred in decreeing the
plaintiff’s claim ignoring that what was purchased by the
appellant in the aforesaid auction sale were structures as
entities which meant both structures and the tenancy rights
of Kumud Bala Dasi in the land underneath and appurtenant to
the structures and not merely the materials of the
structures. We are unable to accede to this contention. In
cases of this nature what has got to be ascertained is what
is the nature of the right, title and interest which was
really intended to be sold in execution of the decree. Any
misapprehension in that behalf on the part of the Court or
the purchaser cannot affect the true legal effect of the
sale.
In Pettachi Chettiar v. Sangili Veera Pandia(1), Lord Watson
observed that in the case of a sale in execution of a money
decree, "the questions are what did the Court intend to
sell, and what did the purchaser understand that he bought
?" It cannot be disputed that these are questions of fact,
or rather of mixed law and fact, and must be determined
according to the evidence in the- particular, case.
In the present case, the right, title and interest of Kumud
Bala Dasi in the suit land being the subject matter of a,
pending litigation at the time of the sale in question, what
was sought and intended to be sold were the structures
simpliciter which meant only the materials of the structures
and not the site underneath or appurtenant thereto nor the
permanent tenancy rights in the site. This becomes further
clear from a close examination of the evidence adduced in
the case. It would be noticed that in the application
submitted by him for execution of the aforesaid- decree
passed in Title Suit No. 317 of 1939, the appellant (decree
holder) prayed to the Court that the decretal amount be got
realised by attachment and sale of the property of the
judgment debtor as mentioned in the Schedule. Now in the
Schedule, the property which was Sought to be attached and
sold was described as under
SCHEDULE OF IMMOVABLE PROPERTY
Within District 24-Parganas sub-Registry,
Sealdah, P.S. Chitpur comprised in premises
No. 27/H/4. Barrackpore Trunk Road, and
standing on approximately 6 Cot. 4 Chh. 4 Sq.
ft. (six Cottas four Chhataks and four square
feet) of land described in Schedule below-one
storeyed four roomed pucca structure with
fittings and fixtures, and two roomed
structure on the first floor having brick
walls and roof of Raniganj tiles upon the one-
storeyed structure, seven shop rooms having
walls (sic) and roofed with tin and two tin-
sheds inside with fittings and fixtures and
all interests therein-valued approximately at
Rs-. 100/-.
(1)L.R. 14 I.A. 84 at 85.
690
North--Gun Foundry Road
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East-Barrackpore Trunk Road.
South-Plaintiff’s land (Illegible) structure
West-Plaintiff’s land, Kamal Sukdeo Prosad’s structure
On the said application for execution of the decree, the
Court passed a prohibitory order on July 31, 1941
prohibiting and restraining the judgment debtor from
transferring or charging by sale, gift or otherwise the
property specified in the Schedule annexed thereto. The
Schedule forming annexure to this order was an exact copy of
the Schedule reproduced above.
It would also at this stage be profitable to refer to the
application (Exh 8 at page 107 of the Paper Book) made by
the decree holder on August 15, 1941 for sale of the
attached property. The underlined portion of the said
application which reads as under is significant :-
"That the petitioner has executed his decree
and has attached the immovable properties of
the judgment debtor which consists of the
structures standing on 27/H/4, Barrackpore
Road. That so far as is known to this peti-
tioner, the attached property is free from
encumbrance."
It may also be relevant to mention here that allowing Kumud
Bala Dasi’s appeal (No. 258 of 1941) which was directed
against the judgment and decree of the 1st Court of the
Munsif at Sealdah passed in Title Suit No. 317 of 1939, the
2nd Additional Court of the Subordinate, Alipore rejected on
March 11, 1942 the appellants prayer for khas possession by
evicting Kumud Bala Dasi on the ground that her tenancy
being permanent, she was not liable to be evicted from the
suit land. The fact that it was only the structures which
were sold and not the structures together with the permanent
tenancy rights in the site on which they stood is also
evident from the fact that the appellant who himself was the
decree holder and understood the entire position purchased
the same for a paltry sum of Rs. 638-11-9. Surely the price
would have been much more if the structures had been
auctioned along with the permanent tenancy rights in the
site on which they stood. On a conspectus of all the facts
and circumstances of the case, we are not able to construe
the sale certificate as conferring any right, title or
interest on the appellant with respect to the permanent
tenancy rights in the suit land-which was underneath and
appurtenant to the structures.
For the foregoing reasons, we are of the opinion that the
High Court was right in decreeing the plaintiff’s claim. In
the result the appeal fails and is dismissed with costs.
S.R. Appeal dismissed.
691