P L D 1949 Dacca 13 (PLP)

The plaintiff, in my opinion, ought to be estopped from taking such a plea ; the sale, therefore, both under the certificate proceedings as also under the subsequent rent decree cannot be regarded as the sale of the holding itself, but merely bf right, title and interest of the debtor. (c) Bengal Tenancy Act (VIII of 1885), S. 174‑Decision of ap plication‑Does not operate as res‑judicata in suit for declaration of title and possession. It is obvious that the scope of this suit, which is for declaration of title and recovery of possession, is not identical with the scope of the application for setting aside the rent sale on the ground of fraud and suppression of notices. Moreover, I am inclined to take the view that the said application can neither be treated as a suit ; nor as a continua tion of a suit. Sachindra Kumar Roy, for Appellant. Niranjan Sarkar and Abani Kanta Roy, for Respondents. Hon'ble Chief justice :

This appeal by the plaintiff arises out of a suit for declaration of title and recovery of possession in respect of the suit land, on the ground that he was the auction purchaser at a rent sale held on the 23rd of January 1941. The plaintiff's case was that the suit land formed part of a homestead comprising plot No. 622 of Khatian No. 73 ; that half of the suit land belonged to the defendant Nos. 1 and 2 and the remaining half to one Shib Chandra Sautradhar ; that Khatian No. 73 aforesaid was sold in a certificate sale under the Public Demands Recovery Act, Bengal Public Demand; Recovery Act, on the 8th of April 193.5 and was purchased by one Monoranjan and 2 others ; that there was a default in payment of rent by these purchasers and the holding was again sold in execution of a rent sale and purchased by the plaintiff and some others on the 23rd January 1541 ; that by partition amongst these purchasers the suit land fell to the share of the plaintiff ; that although there was delivery of possession by the Court, when the plaintiff went to take actual possession of the land he was resisted by the defendants Nos. l and 2 who refused to vacate. The plaintiff was, therefore, constrained to institute he present suit. The defendant No. 2 alone contested the suit. His defence inter alias, was, that the rent sale at which the plaintiff and others had auction purchased on the 23rd January 1941 was at best a money sale and had passed only the right title and interest of the Judgment‑debtor ; that prior to the rent sale, in the certificate sale of the 8th of April 1935, the plaintiff, who had purchased the interest of defendants Nos. 1 and 2 in execution of a money decree on the 22nd May, 1934 obtained against them, was not impleaded in the Certificate Case, and his interest, therefore, had continued to remain intact even after the certificate sale of the 8th of April 1935 ; that this interest of the plaintiff came to the present defendants Nos. 1 and 2, was evidenced by a compromise decree dated 5th February 1940 in suit No.126 of 1939 instituted by the plaintiff' against the defendants, that the defendants, therefore, were competent to take the plea of the defect of parties in not impleading the plaintiff in the Certificate sale proceeding as also in the rent suit and execution proceedings for realization of rent decree. The trial Court decreed the suit but the lower appellate Court dismissed it. The plaintiff, therefore, preferred this second appeal. It was urged before me by the learned Advocate for the appellant that the certificate proceedings being taken as against the recorded tenants, namely, defendants Nos. 1 and 2, and Shib Chandra Sautradhar, the sale there under passed the entire holding and not merely the right title and interest of the certificate debtors. It is apparent, however, that the plaintiff's in execution of the money decree had purchased the interest of defendants Nos. 1 and 2 on the 22nd May of 1934, prior to the certificate sale on the 8th of April 1935. In this connection the Court of Appeal 1 below has observed that on the money sale in which the plaintiff purchased the "landlord's fees and notices must have been sent to the landlords before the confirmation of the money sale, which took place on 29th September, 1934." The certificate sale, as observed, took place on 8th April, 1935. ‑ In the circumstances, I am of opinion, that the Court of Appeal below took the correct view in holding that in order to get a rent decree, within the meaning of Chapter XI V of Bengal Tenancy Act it I was necessary for the landlords to implead the plaintiff in the certificate sale and also in the rent sale. Maharaj Bahadur Singh v. Nari Mollani and another 40 C. W. N. p. 683 and Rupram v. Iswar Namasudra 6 C. W. N.

303. It is also to be noticed that in the suit No. 126 of 1939, by a compromise the plaintiff gave up his title in the land acquired on the basis of his purchase under the motley sale, in favour of the defend ants. The plaintiff, therefore after obtaining the title to the self same land under the rent sale, cannot turn round and say that he had no title to give up in favour, of the defendant at the time he did so under the compromise decree in Suit No. 126 of 1939. The plaintiff, in my opinion, ought to be estopped from taking such a plea the sale, therefore, both under the certificate proceedings as also under the subsequent rent decree cannot be regarded as the sale of the holding itself, but merely of right, title and interest of the debtor. That being the position, the plaintiff cannot get his title declared as against the defendants in the suit as ‑found by the learned District Judge in the Court of Appeal below. Next it was argued that as there was a proceeding under section 174 of the Bengal Tenancy Act for the purpose of setting aside the rent sale dated 23rd January, 1941; and in that proceeding it was found that the defendants Nos. 1 and 2, had no interest and, therefore, no locus standi to maintain that application that finding would operate as res judicata in the present suit in favour of the plaintiff. But it is obvious that the scope of this suit, which is for declaration of title and recovery of possession, is not identical with the scope of the application for setting aside the rent sale on the ground of fraud and suppression of notices. Moreover, I am inclined to take the view that the said application can neither be treated as a suit nor as a continuation of a suit. The defendant Nos. 1 and 2 it should be observed were no parties to the rent suit or to the execution proceedings in connection therewith I am, therefore, inclined to agree with the learned Judge of the Court of Appeal below that the decision in the application under section 174 of Bengal Tenancy Act cannot operate as res judicata in the present suit, In my opinion both the contentions put forward by the learned Advocate for the appellant fail and I, accordingly. dismiss this appeal with costs. K. M. A. Appeal dismissed.