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1953 Supreme(Cal) 179
HIGH COURT OF CALCUTTA
CHAKRABARTI, LAHIRI
SRI BANSI GOPAL JIU - Appellant
Versus
UDAY CHAND MAHATAB - Respondent
Appeal 6 Of 1951
Decided On : AUGUST 19, 1953
ATUL CHANDRA GUPTA, BIRESWAR CHATTERJI, GOURI SANKAR MUKHERJEE, N.C.SEN GUPTA, PROMODE KUMAR GHOSH, Purnendu Narayan Nath, PURUSHOTHAM CHATTERJI, RANJIT KUMAR BANERJEE, SARAT KUMAR MITRA
Delivery of symbolical possession of the property sold at a certificate sale under the Public Demands Recovery Act, 1913, is equivalent to delivery of actual possession for the purposes of limitation under proviso (a) to Section 36 of the Act.
Headnote:
PUBLIC DEMANDS RECOVERY ACT - SECTION 36 - LIMITATION - DELIVERY OF POSSESSION - SYMBOLICAL POSSESSION - RES JUDICATA - CERTIFICATE SALE - SETTING ASIDE - SUIT FOR - DECREE IN EARLIER SUIT - EFFECT OF.
Fact of the Case:
Plaintiffs, Sebaits of a deity, sued to set aside an auction sale held under the Public Demands Recovery Act, alleging that the notice under Section 7 of the Act had not been served. The trial Court dismissed the suit on the grounds that the Arpannama was fraudulent, that service of the notice under Section 7 had not been proved, and that the suit was barred by limitation and res judicata. The appellate Court dismissed the appeal, holding that the suit was not barred by res judicata, but that it was barred by limitation under proviso (a) to Section 36 of the Act.
Finding of the Court:
The High Court held that the suit was not barred by limitation, as delivery of symbolical possession of the property sold at the certificate sale was equivalent to delivery of actual possession for the purposes of limitation under proviso (a) to Section 36 of the Act. The Court also held that the suit was not barred by res judicata, as the plaintiffs could not have impugned the certificate sale as defendants in the earlier suit on the ground of non-service of notice under Section 7. However, the Court held that the decree passed in the earlier suit, in which the Maharaja had obtained a decree for possession against the plaintiffs, was binding on the plaintiffs and could be executed against them, and that no relief could be given in the present suit so long as that decree stood.
Issues: 1. Whether the suit was barred by limitation under proviso (a) to Section 36 of the Public Demands Recovery Act, 1913? 2. Whether the suit was barred by res judicata?
Ratio Decidendi: 1. The Court held that delivery of symbolical possession of the property sold at the certificate sale was equivalent to delivery of actual possession for the purposes of limitation under proviso (a) to Section 36 of the Act. The Court reasoned that the principle evolved under the Code of Civil Procedure, that delivery of symbolical possession is equivalent to delivery of actual possession as between the decree-holder auction-purchaser and the judgment-debtor, should be applied to delivery of possession under the Public Demands Recovery Act. The Court also held that there was no reason to exclude the principle from cases where symbolical possession was delivered, although the proper mode was delivery of actual possession. 2. The Court held that the suit was not barred by res judicata, as the plaintiffs could not have impugned the certificate sale as defendants in the earlier suit on the ground of non-service of notice under Section 7 of the Act. The Court reasoned that Section 36 of the Act provides that a certificate-sale shall not be held to be void on the ground that the notice required by Section 7 has not been served, but that a suit may be brought to set aside such sale on that very ground. The Court held that the effect of this section is that a certificate-sale, without service of notice under Section 7, is not void but only voidable, and that until it is avoided by the certificate-debtor by a suit brought for the purpose, it must be taken to be a good sale and cannot be either attacked collaterally in other suits as a void sale, nor held by the Court in other suits to be void.
Final Decision: The appeal was dismissed with costs.
( 1 ) IN this appeal under Clause 15 of the Letters Patent, two interesting points were canvassed before us, of which one was not considered by Mr. Justice Mookerjee, against whose decision the appeal is directed.
( 2 ) THE appeal is on behalf of the plaintiffs. They and defendants Nos. 3 to 17 held a raiyati tenancy under the Maharaja of Burdwan, comprising fiftysix bighas of land and carrying an annual rent of Rs. 48-13-0. The rent of the tenancy for the Bengali years 1338 to 1341 having fallen into arrear, the Court of Wards, who were managing the Maharaja's estate at the time, started a certificate proceeding which was Certificate Case No. 857 of 1934-35 and ultimately brought the properties to sale on March 11, 1935. At the sale, the lands were purchased by the Court of Wards themselves for only three pies. The sale was confirmed on May 11, 1935, and delivery of possession was taken on July 20, 1937, but it was only symbolical possession.
( 3 ) IN June, 1941, the Maharaja settled the lands with one Surendra Nath Bhattacharjee, who is defendant No. 2 in this suit. The Maharaja was, however, unable to give possession to the lessee and therefore on June 9, 1942, he instituted Title Suit No. 135 of 1942 against the old tenants for recovery of possession, either directly or through his new lessee as his tenant. The present plain tiffs were defendants Nos. 4, 5 and 6 in that suit and the present defendant No. 2, who is the new lessee, was pro forma defendant No. 15. The present plaintiffs did not contest the suit, b (sic) some of their co-sharers did and the defence s (sic) up by them was, first, that the sale was bad, (sic) the relevant notices had been suppressed; second (sic) that, in any event, it had not passed the enti (sic) holding, inasmuch as some of the co-sharer-tenan (sic) had not been made parties; thirdly, that the plaintiff tiff had never obtained delivery of possessor and, fourthly, that the predecessor-in-interest (sic) the present Maharaja had resettled the lands wit (sic) the old tenants or ratified the old tenancy (sic) cancelling the certificate sale. These defences were overruled by the trial COURT in the view that really the sale could no long (sic) be challenged in that suit, but the Court also held that the notices had been duly served, that the Maharaja had obtained delivery of possession, that thereafter the old tenants had continued to be ir (sic) actual possession, but only as holding under th (sic) 'kut' system, which meant holding as 'bhagchashis (sic) without any right of tenancy and that, therefore, the Maharaja was entitled to recover possession (sic) The actual decree made, however, was that the Maharaja would get possession only of a 5/6ths (sic) share of the tenancy through the new lessee, in (sic) asmuch as the tenants, holding the remaining interest, had not been represented in the certificate proceedings and that he would get possession of the remaining 1/6th through the old tenants holding that share, namely, defendants Nos. 12 and 13 of that suit who, by the way, are defendants Nos. 15 and 16 of the present suit. The decree of the trial Court was made on May 29, 1943.
( 4 ) ON July 5, 1943, the present suit was brought under Sections 36 and 37 of the Public Demands Recovery Act for setting aside the auction-sale. The plaintiffs sued as Sebaits of a certain deity on the basis that the tenancy was debutter property and had been so for over a century. It appears that on January 4, 1942, a registered Arpannama was executed in favour of the deity in which a debutter of ancient origin was recited and it was stated that the execution of the formal document had become necessary on account of the growth in the number of the descendants of the original donor. There were two defendants in the suit, the Maharaja of Burdwan being defendant No. 1, his new lessee, Surendra Nath Bhattacharjee, defendant No. 2.
( 5 ) THE only case made in the plaint which requires to be mentione
