P L D 1970 Dacca 195 (PLP)

Q. Did you state in the aforesaid application Exh. 1 that your mother did not know whether there was any woman bearing the name of Nihar Bala Sen and whether she resided at Ramkrishan Mission Road ? (objected to). Ans : "Yes". (Witness volunteers.) "I submitted the aforesaid application after looking into the record of the case". "Yes", I said in my deposition that Nihar Bala Sen was not my mother's nick name.") It is obvious that this gentleman has been won over after the order passed by the Court setting aside the sale. It is further to be seen that the record of the Execution Case has been obviously tampered with. It has been categorically stated in paragraph 4 of the petition that the word (alias Uttama Sundari Sen) were interpolations in the petition for execution proceedings. In the affidavit‑in‑opposition there is a mere denial to this effect. While placing the records the petitioner has placed before me at the time of hearing this document which is at page 2 of the record and it is clear that the words "Orfa Uttama Sundari Sen" is an interpolation. The name of the husband, however, is given as late Suresh Chandra Sen. At the time of hearing of this petition the order of attachment and sale proclamation in Form No. (P) 93‑A was also shown to me whether the same interpolation has been made. This is at page 12 of the record. The husband's name here also has been mentioned as Suresh Chandra Sen showing that the Words "Orfa Oma Sundari Sen" is a clear interpolation. But what strikes me is this that the Opposite‑Party No. 1 has not produced any records to show that Uttama Sundari was also known as Niharbala Sen in the records of the landlord which alone would entitle the landlords to bring a suit against Uttama Sundari in the name of Nihar Bala Sen. It is obvious that the rent suit was deliberately brought in the name of a fictitious person and after having obtained an ex parte decree in the name of the fictitious person execution was sought to be taken out in the name of the real person after tampering with the original application and sale proclamation by inserting the name of the real tenant by perpetrating a fraud on the Court. In these circumstances I hold that the decree in rent sale of 213/39 was fraudulently obtained against a fictitious person and 'cannot be legally any basis for the rent Execution Case No. 65 of 1959 and all proceedings in the said rent Execution Case had no legal basis and are of no legal effect. I fail to understand how the learned Munsif had come to the conclusion that the rent suit was brought in the name of the tenant Uttama Sundari Devi and how he could hold that Uttama Sundari Devi and Nehar Bala Sen is one and the same person. The learned Munsif therefore failed to exercise the jurisdiction vested in him by law. In the facts and circumstances of the case status quo ante to the institution of the false rent suit must be restored. I would now proceed to consider the question of maintainability of the application under Order XXI, rule 100 of the Code of Civil Procedure. It has been held by the Court below that the petitioner Obaidul Haque Chowdhury cannot be said to possess the property on the date of dispossession on his own account. The position taken by the petitioner is that he ha claimed to be in the position of a future purchaser of the property who has been put into possession thereof. He was put into possession of the property by Md. Azim. Md. Azim according to the petitioner had entered into a contract with Uttama Sundari Devi for purchase of the property and he had paid more than 1/3rd of the contracted sale price. Md. Azim's possession in the property was initially that of a tenant at will but after the contract he was possessing the property in his own right as a future purchaser. The petitioner before me has acquired the right, title and interest of Md. Azim. After the contract, it appears to me, the relationship of landlord and tenant ceased. Now it is for me to see whether the parties have been able to prove the contract. The petitioner has examined himself as P. W.

1. He has categorically deposed that he had acquired the interest of Azim by an agreement deed and got possession of the property. In cross‑examination he admitted some letters Exhs. A, A‑1 and A‑

2. Exh. A‑1 is a letter dated 6‑1‑1958. In that letter he has written that some difficulties have been created by Azim ; but so far as he is concerned he has been induced to purchase the house on the request of Azim who had represented that the petitioner would have to pay Rs. 8,000 and odd for the house and Azim would be able to get a good title deed for him. In Exh. A‑1 a letter dated 11‑11‑58 there is a suggestion of exchange with Bankura properties of the petitioner with the disputed house. Exh. A‑2 is a letter dated 8‑8‑1958 in which there is a reference to the document of Azim with Uttama Devi and the terms are set out there from which it appears that there was a transaction between Uttama Devi and Azim, by which a sum of Rs. 3,145 was paid out of the price for the disputed house which was fixed for Rs. 8,445 and possession was given to Azim and it was contracted that Uttama Devi would get Rs. 5,800 if Azim sold the house to some body else when Uttama Devi would execute and register the sale deed. The document in question has been also tendered into evidence Exh‑ E. The said document in itself, however, which is an unregistered document, seems to be a clear deed of exchange between Uttama Devi and Azim by which some property of Mr. Azim in Hoogly is alleged to be exchanged with the disputed property. Whatever be the rclationship between titama Devi and Azim the position of the petitioner is that he had taken possession of the disputed property from Azim and pursuant to his possession Exh. 4, a receipt was granted by Azim on 19‑5‑

58. Exh. 4 reads thus : (Seal) Dacca Law Reports Shand Nagar, Ramna Dacca (E. Pak.) Dated 19‑5‑58 19‑5‑58 (Sd.) Sk. Abdul Azim (Revenue Stamp) Seal : Dacca Law Reports, Shantinagar, Ramna, Dacca (E. Pak.) Dated 19‑5‑58 To Mvi. Obaidul Huq Chowdhury, Advocate. On the basis of a firm agreement to transfer the premises known as Varandwa's Asram, 64, Shantinagar held in my title and possession, on receipt of cheque B. C./l. 40147 dated 19‑5‑58 for Rs. 200 to my satisfaction today you have already got possession of that premises. I execute this receipt in acknowledgement of the aforesaid amount. (Sd.) Sk. Abdul Azim 15‑5‑58 (Revenue Stamp) This document clearly indicates that Azim gave possession of the house to Obaidul Haque, on an agreement to complete his title to it. There is no reference to Uttama Devi in the said receipt. Therefore, Obaidul Haque cannot be deemed in any way representative of Uttama Devi. He was put into possession under the contract of sale by Azim. In the application under, section 174(3), Exh. 1, it has been stated in paragraph 8 that Md. Azim is a monthly tenant at will of the said house and while possessing the same as such he left it in 1958 without knowledge of and without notice to, the petitioner illegally and unauthorisedly making over possession of the same to Obaidul Haque Chowdhury. This statement by Uttama Sundari Devi clearly shows that Obaidul Hague was possessing not as representative of Uttama Sundari Devi but on his own account. In the case of Paryage Sahu v. Babu Chandrachur Deva and others (A I R 1939 Pat. 263) a mortgagee of a tenant has been held not to be a legal representa tive of the tenant within the meaning of rule 101 of Order XXI of the Civil Procedure Code. In the case of Kedar Nath Bag v. Saday Chandra Nandi (A I R 1914 Cal. 580) it has been held also that a mortgagee of an occupancy holding is in possession on his own account and not on account of his mortgagor within the meaning of the rule 101 of the Civil Procedure Code, and it has been further held in this case that a purchaser of an occupancy holding in execution of a rent decree is not entitled to oust the mortgagee c in possession summarily in execution proceedings, but must annul the incumbrance before he can terminate that possession. I think the principle enunciated in these two cases clearly apply to the facts of this case and I hold accordingly that the petitioner Obaidul Haque Chowdhury was possessing the disputed property on his own account on the date of his dispossession. Therefore, I make the Rule absolute with cost and set aside the order of the learned Munsif in Misc. Case No. 207 of 1961 and order that the petitioner be restored to possession of the disputed property forthwith. I further direct the learned District Judge of Dacca to hold a thorough enquiry as to how interpolations were made in the courts records, particularly the application for execution of decree at page 2 of the record and the sale proclamation at page 12 of the record. The learned District Judge is also to direct his attention how the rent decree being in the name of one person the execution proceedings could be taken out in the name of another person showing a second person merely as an alias without a prayer for an amendment. The learned District Judge is directed to take proper steps under the law against the persons whom he finds guilty of thus flagrantly abusing the processes of the Court. The learned District Judge may call upon the petitioner for any assistance that he may deem necessary in the enquiry. A. E./S. A. H. Rule made absolute.