P L D 1967 Dacca 388 (PLP)

This revisional application under section 1.15 of the Code of Civil Procedure is directed against an appellate order reversing the decision of the learned trial Court allowing the petitioner's application under section 174 (l) of the Bengal Tenancy Act for setting aside the sale held in Rent Execution Case No. 116 of 1960. The material facts are not in dispute and may be stated as follows:‑ Under one Mobarak and one Monindra Mahajan there was a raiyati holding in which the present petitioner Jogendra Lal De acquired some interest by purchase from one Apurba under the kabala Exh. D. Thereafter one Abdul Ghani auction purchased the holding on 2‑6‑55 in Execution Case No. 402 of 1954 wherein the Decree obtained by one of the co‑share landlords, namely, Mobarak Ali, in Rent Suit No. 673 of 1951 was put into execution. Delivery of possession was duly taken on 11‑9‑

56. According to the petitioner, as it appears from the record, the said auction purchaser Abdul Ghani was a benamdar of his and accordingly executed a deed of release in his favour vide Muktipatra Exh. E. It may be noted here that one of those impleaded as defendants in the said suit and later as judgment -debtors in the execution proceeding arising out of it was one Manindra Dey and not Monindra Mahajan, the co‑sharer landlord, as wrongly stated by the learned Subordinate Judge. It however appears that prior to the aforesaid sale in Rent Execution Case No. 402 of 1954 the other co‑sharer landlord, namely Monindra Mahajan, had himself auction purchased this holding 7‑4‑55 in execution of the decree obtained by him in Rent Suit No. 584 of 1951 in Rent Execution Case No. 389 of 1954, and thereafter took delivery of possession on 28‑7‑

55. Again Mobarak Ali filed Rent Suit No. 116 of 1955 for arrears of rent of this holding against the original tenants including the present petitioner and his predecessor‑in‑interest and eventually succeeded in obtaining a decree against his co‑sharer Monindra Mahajan only on 12‑9‑

55. The suit was dismissed as against the original tenants on the ground that their interest in the holding had passed to Monindra Mahajan on the basis of the auction purchase made by him. It was, of course, found as per Exh. 4, that the decree obtained by Monindra Lal Mahajan in Rent Suit No. 584 of 1951 had the effect of a money decree as the co‑sharer landlord, namely, Mobarak Ali, had not been impleaded in the suit. Mobarak Ali again instituted Rent Suit No. 472 of 1959 on 30‑7‑60 for arrears of rent against the original tenants impleading his co‑sharer, i.e., Monindra Mahajan as pro forma defendant No.

11. Ultimately, however, he obtained a decree against Monindra Mahajan only and the suit was dismissed as against the original tenants including the present petitioner. This decree was put into execution in Rent Execution Case No. 166 of 1960. Execution was actually sought as against Monindra Mahajan against whom the suit had been decreed, though in the relevant column of the application for execution the original tenants also were shown as defendants. In due course this terminated in the sale of the holding on the 7th December 1960, the auction purchaser being one Abdul Ghani (not Abdul Gani who made the auction purchase in Execution Case No. 402 of 1954). The present petitioner then came up with an appli cation under section 174 (1) on 28‑1‑60, for having the sale set aside on deposit of the requisite amount. The application was allowed ex parte and the sale set aside on acceptance of requisite deposit, but that was followed by an application under Order XLVII, rule 1 of the Code of Civil Procedure filed by the auction purchaser on 11‑1‑1961. This was eventually allowed on 30‑12‑1963 and the said execution case revived on reversal of the ex parte order dated 11‑1‑1961 whereby the auction sale had been set aside. The present petitioner was then called upon to prove his locus standi, whereupon the auction purchaser filed a written objection challenging the locus standi of the petitioner. After hearing both the parties in due course the learned Court however rejected the objection of the auction purchaser, accepted the deposit made by the petitioner and set aside the auction sale by its order dated 27‑3‑

64. On appeal, the learned Subordinate Judge has reversed the decision of the learned Munsif and rejected the application of the petitioner for setting aside the sale and deposit of the requisite amount by him. It is in these circumstances that the petitioner came up to this Court in rever sion under section 115 of the Code of Civil Procedure and obtained the present Rule. It has been concurrently found by both the Courts below that the petitioner was not a judgment‑debtor in the execution proceeding culminating in the disputed sale for the reason that although he was shown as a defendant in the relevant column of the execution petition, relief was sought only against Monindra Lal Mahajan, against whom decree had been passed and not against this petitioner or any of those others, who had been impleaded as defendants in the suit. Proceeding however to discuss the kabala Exh. D by which the petitioner required his interest in the holding in question from Apurba as well as the sale certificate Exh. A, the learned Munsif appears to have taken the view that the documents filed show that the petitioner had interest in the land and that the same was likely to be affected by the sale. The learned Subordinate Judge, on the other hand, has, on a detailed discussion of all the relevant documents on record, come to hold that so far as the .interest acquired by the petitioner under the kabala Exh. D from Apurba is concerned, that was extinguished by the auction purchase made and delivery of possession, symbolical though, taken by Monindra Mahajan in Rent Execution Case No. 389 of 1954. He has further found that under the sale certificate Exh. A, in regard to the sale held in Rent Execution Case No. 402 of 1954 Abdul Gani acquired no title, in that the property had already been sold earlier and purchased by Monindra Mahajan on 7‑a‑55 in Rent Execution Case No. 389 of 1954‑Vide Exh.

1. The conclusion reached by him therefore is that the petitioner also acquired no title on the basis of the Muktipatra, Exh. A executed by Abdul Gani in his favour purporting thereby to release the property purchased by him under the sale certificate Exh. A. Thus taking the view that the petitioner has no subsisting title to the property involved, he rejected his prayer for setting the sale under section 174(1) of the Bengal Tenancy Act. Mr. S. C. Bose, the learned Advocate for the petitioner, though critical of the above view taken by the learned appellate Court on the question of his client's title has not advanced any argument in that behalf, as the said question, depending upon the effect of the two sales in relation to each other, can, accord ing to him, be decided properly and finally only in a regular suit before the appropriate forum and not in a summary proceed ing under section 174 (1). The point he seeks to make is that for the purpose of locus standi to come under section 174 (1), it is not necessary to establish title and therefore the investi gation made by the learned Subordinate Judge into the question of title was uncalled for as his order rejecting the petitioner's application simply on the ground that he has no subsisting title is misconceived. The stand thus taken by him is that even granted that his client has no subsisting title by reason of its extinction by auction sale followed by delivery of possession taken by Monindra Mahajan, there is no dispute that he is actually continuing in possession and since any one having a proprietory, possessory or pecuniary interest is, as is well‑established, a person affected by the sale within the meaning of the provision referred to above, his client can rightly come under section 174 (1) to save his possessory interest, i.e., actual physical possession. Proceeding he has argued that even though Monendra Mahajan took symbolical possession he did not follow it up by any action either through Court or otherwise to evict the petitioner from the land, so that the latter can continue, as he is in fact conti nuing, in possession till he is evicted in due process of law by bringing a suit. According to Mr. Bose, this right, that the petitioner has to stay on till his eviction in due course of law, is an interest within the meaning of the expression "persons whose interest is affected by the sale" occurring in section 174 (1) and therefore the petitioner has locus stand! to come under the said provision and make the necessary deposit for the purpose of having the sale in question set aside. Mr. A. S. M. Mofakher appearing on behalf of the opposite‑party has vehemently contested the above‑mentioned proposition propounded by Mr. Bose and maintained that it ill‑behaves a trespasser like the present petitioner to put forward his illegal possession as an "interest" and claim on the basis thereof the benefit of section 174 (1). In my view, the premises, upon which Mr. Bose has sought to found his proposition, suffer from a patent fallacy. It is for from appropriate to say that because the auction purchaser Monindra Mahajan has not followed up the delivery of symbolical possession taken by him by any further action for the purpose of actually ousting the petitioner, the petitioner has a right to stay on, as he is staying on. The correct position rather is that the petitioner is wrong in continuing in possession after the delivery of possession taken against him and is acting contrary to law in keeping the auction‑purchaser out and thus driving him by his wrongful act to the necessity of instituting a suit for his eviction. In this view of the matter, the petitioner cannot be said to have any right whatsoever at all to stay on and the fact that he is doing so is definitely wrongful. In my opinion, the interest contemplated by the expression "any one whose interest is affected by the sale" occurring in section 174, subsection (1) of the Bengal Tenancy Act must be such as has been acquired lawfully, or even if not so acquired, has by lapse of time or otherwise received recognition in law but cannot, in any event, he said to refer to, or include, a wrongful interest,' i. e. an interest claimed in defiance or disregard of the law. The conclusion I am thus led to reach is that the petitioner is not entitled to claim the benefit of the said section and as such the application made by him purported to be thereunder is not maintainable. Accordingly the impugned order passed by the learned Subordinate Judge does not call for any interference in revision. As requested by Mr. Bose I would only add, though perhaps not necessary at all, that the petitioner, if so advised, shall be free to agitate the question of title in a properly framed suit before the Court of competent jurisdiction, and should such a suit in fact be instituted, neither the findings made by the learned Subordinate Judge nor any observation made above shall operate to his prejudice therein. The Rule is accordingly discharged with costs. K.B.A. Rule discharged.