P L D 1960 Dacca 968 (PLP)

AKBAR, J.‑This appeal by defendant No. 2.1, Halimunnisa, arises out of a suit filed by Hemendra Kumar Roy Chowdhury, the Managing Trustee of the Trust of Sanatan Nityananda Roy, for a declaration that the certificate sale held on 10‑10‑49 was a collusive and fraudulent one and that in any event 7 annas share of the Trust Estate was not affected by the said sale. The Trustee also prayed for an injunction restraining the defendant from interfering with his possession of the Trust Estate.

2. The case of the Managing Trustee was as follows: The Mahal called the Bahali Mahal was owned by the parties in the following shares: Sanatan Nityananda Roy Trust Estate 0‑7‑0 Defendant No. 1 Sree Dwip Chand Chowdhury and defendant No. 2 Sree Keshab Chand Chowdhury 0‑7‑0 Defendant No. 3 Amir Hamja 0‑1‑0 Defendants Nos. 4 to 23 0‑1‑0 Total 0‑1‑0 On 10‑10‑49, the mahal was put to auction‑sale in Certificate Case No. 212C of 1943‑

44. It is alleged that defendant No. 8, taking advantage of the absence of the Trustees, made defaults in payment of the cesses in collusion with other co‑sharers and brought about the sale of the mahal. It is further alleged that all the sale processes were fraudulently suppressed and that defendant No. 8 Rashid Ahmad auction‑purchased the mahal in the benami of his wife, defendant No. 24 Halimunnisa. Defendants Nos. 1, 2, 8, 24 and 25 contested the suit.

3. Defendants Nos. 1 and 2 supported the plaintiff's allega tion that defendant No. 24 was the benamdar of defendant No.

8. They, however, denied that the sale processes were collusively suppressed as alleged by the plaintiff:

4. Defendant No. 8 Rashid Ahmad denied the allegation that he was the real purchaser of the mahal. He further stated that the sale processes were duly served in the locality. He also took the plea of limitation. Further, according to him, he had no interest in the mahal, as his father, Thanda Meah, had ceased to be a co‑sharer of the mahal long before the sale. His story was that originally Thanda Meah and his two brothers owned one anna share in the mahal and after Thanda Meah's death defendants Nos. 4 to 6 and 13 and 14 got Thanda Meah's 1 anna share by a deed of partition.

5. Defendant No. 24 Halimunnisa contended that she was a bona fide purchaser of the mahal and that she was not the benamdar of her husband, defendant No.

8. According to her, there was no fraud or material irregularity in publishing or conducting the sale and that the property was told at a fair price. She also contended that sections 36 and 37 of the Public Demands Recovery Act were a bar to this suit.

6. Defendant No. 25, the Province of East Bengal, contended that the sale processes were duly served and there was no fraud in conducting the sale. They also challenged the validity of the notice issued by the plaintiff under section 80 of the Civil Procedure Code.

7. The learned Subordinate Judge, who heard the suit, found‑

(1) that the plaintiff had locus standi to bring this suit ; (2) that the suit was not barred by limitation ; (3) that the suit was correctly valued by the plaintiff ; (4) that notice under section 80, C. P. C., was properly served on the Government ; (5) that defendant No. 8 Rashid Ahmed had no interest in the disputed mahal on the date of sale ; (6) that the auction‑purchaser, defendant No. 24, was not the benamdar of her husband defendant No. 8 and that she actually purchased the mahal with her own money ; (7) that there was no fraud in publishing and conducting the sale and hence the Civil Court had no jurisdiction to set aside the sale ; (8) that the name of the present Managing Trustee not being added in the Certificate, he could not be called a Certificate‑debtor within the meaning of section 3 of the Public Demands Recovery Act and, as such, under section 20 of the said Act, the auction purchaser did not acquire any right, title and interest in the Trust Estate by her auction‑purchase ; (9) that the suit by the Trustee for a declaration that the interests of the Trust Estate did not pass by the certificate sale was maintainable in law ; and (10) that the suit was not barred under section 42 of the Specific Relief Act.

8. In this view of the matter, the learned Judge gave the declaration prayed for. He also granted an injunction restraining the defendants from interfering with the plaintiff's possession.

9. Defendant No. 24, Halimunnisa, the auction‑purchaser, has filed this appeal against the judgment and decree of the learned Subordinate Judge.

10. Mr. Khondkar, the learned Advocate for the appellant, has raised the following four points: (i) that the suit was barred under section 42 of the Specific Relief Act ; (ii) that all the trustees should have joined with the plaintiff, (iii) that notice under section 80, C. P. C., was bad in law, and (iv) that section 36 of the Public Demands Recovery Act bars the suit. 11. (Point No. i ) : At the outset, we may mention that the finding of the learned Judge that the plaintiff not being a certificate‑debtor within the meaning of section 3 of the Public Demands Recovery Act (hereinafter referred to as the Act) his interest did not pass by the certificate sale has not been challenged before us. The High Court of Calcutta, by its order dated 13‑5‑48, removed the old Managing Trustee, Kali Mohan Saba, and thereafter he died on 15‑8‑

48. In July, 1948, the present Managing Trustee was appointed. The sale was held on 10‑10‑

49. Neither the name of the outgoing Trustee Kali Mohan Saba nor the name of the present Managing Trustee appears in the Certificate. It is thus clear that the present Trustee cannot be called a certificate‑debtor within the meaning of section 3 of the Act and, as such, the auction‑purchaser did not acquire the interests of the Trust Estate : See Bharat Bandhu Chattopadhya alias Bharat Bandhu, Chatterjee v. Ranendra Kumar Dutta and others (70CLJ370).

12. Mr. Khondkar has argued that after sale the auction, purchaser got possession of the entire mahal and hence the plaintiff should have asked for recovery of possession of his share. As he did not do so, this suit was barred under section 42 of the Specific Relief Act. Mr. Khondkar, in support of his contention, has relied on the following decisions : 8 D L R 82, (1955) 7 D L R 1=P L R 4 Dacca 497 and 46 C W N 20.

13. Mr. Mofakher, the learned Advocate for the plaintiff respondent, has conceded that without consequential relief asked for in the suit, the suit would be hit by section 42 of the Specific Relief Act ; but as a proper consequential relief, namely, injunc tion was asked for, the suit was in order. Mr. Mofakher has relied on the decision reported in 42 C W N 930 (P C) is support of his contention.

14. The question relating to this point which requires consideration is : Whether the consequential relief actually asked for was sufficient to satisfy the legal requisites as to the maintainability of the suit so far as section 42 is concerned. We have already found that the plaintiff was not a certificate debtor and hence the auction‑purchaser did not acquire his 7 annas‑share by this sale.

15. The next question is : Did the auction‑purchaser get possession of the entire mahal 7 From the Schedule to the plaint, it appears that the mahal consists of 1846.81 acres of khas and tenanted land in Mouza Saral, P. S. Banshkhali, 386.14 acres of khas and tenanted land in Mouza Gandamara, P. S. Banshkhali, and 72.95 acres of khas and tenanted land in Mouza Mankirchar, P. S. Banshkhali. The sale was held on 10‑10‑

49. On 25‑6‑50, the process‑server gave delivery of possession to the auction‑purchaser. The suit was filed on 13‑11‑

50. The plaintiff's witnesses gave evidence to show that the defendant auction‑purchaser did not get khas possession of the mahal whereas the auction‑purchaser and her witnesses attempted to show that she did get such possession. On the evidence adduced in this case, we are inclined to think that at best the auction purchaser got only symbolical possession of the auction‑purchased property. Furthermore, we agree with the learned Judge that the delivery of possession taken by the auction‑purchaser will not affect the possession of the plaintiff in the least because he was not a certificate‑debtor in the case. Furthermore, the cases on which Mr. Khondkar has relied have no application here.

16. In the case of Almaz Khatun and others v. Ezahar Meah ((1956)8DLR82), it was held that a suit under section 42 of the Specific Relief Act for declaration of plaintiff's right in respect of lands which were in his possession through tenants will not lie without asking for consequential relief where the defendant after his auction‑purchase had obtained symbolical possession thereof inasmuch as symbolical possession in such a case effectively terminates the possession of the plaintiff. In the present case the plaintiff, however, not being a certificate‑debtor, this symbolical possession will not amount to actual possession and hence the case in 8 D. L. R. 82 has no application here.

17. In Haji Yar Ali Khan Chowdhury v. Mobarak Ali Chowdhury and another ((1955) 7 D L R 1=PLR 4 Dacca 497), it was held that where a plaintiff suing for a declaration of his title to the office of mutawalli was not in possession of the wakf estate as mutawalli, he must ask for possession by reason of section 42 of the Specific Relief Act and failure to do so will vitiate the suit. In the above case, the finding was that the plaintiff was not in possession of the wakf estate. In the instant case, however, we have found that the plaintiff's possession was not disturbed by the sale. Therefore, the above case of Haji Yar Ali Khan Chowdhury also does not help the appellant.

18. In the case of Anilabala Debi v. Madhabendu Narain Roy (46 C W N 20), the Court observed at page 28: "On this principle where the plaintiff whose title is denied by the defendant is out of possession and the defendant is in possession, the further relief would be recovery of possession and a suit for declaration of title will not be maintainable unless the plaintiff prayed for possession also. If, however, the plaintiff is out of possession but the defendant is not in posses sion or is not in a position to deliver possession to the successful plaintiff, injunction would be the further relief." We have already held that the auction‑purchaser did not and could not actually get possession of the plaintiff's share and hence the above decision also does not apply to this case.

19. On the other hand, we think that the decision in the case of Sunder Singh Mallah Singh Sanatan Dharam High School Trust, Indaura v. The Managing Committee, Sunder Singh‑Mallah Singh Rajput High School, Indaura (42 C W N 930 (P C)), on which Mr. Mofakher has relied, is applicable to this case. In the above case, the High Court took the view that the defendants were not in possession or in a position to deliver possession of the suit properties and that, therefore, no further relief other 'than injunction was available to the plaintiff. Their Lordships of the Privy Council observed at page 934: "Their Lordships agree with the High Court in this view ; and it may be added that where it is not open to the plaintiff to pray for possession also as against the defendant, injunction is further relief within the meaning of the proviso : See Pollock and Mulla on the Specific Relief Act (6th Edn.) at page 853, and authorities there cited". In our opinion, the above observations are fully applicable to this case. On the evidence adduced in this case, we are satisfied that the plaintiff is in possession of his share of the mahal. Hence injunction would be the proper remedy and there was no scope or necessity for prayer for possession of his share in the mahal. We are, therefore, unable to accept the contention of Mr. Khondkar that, in the absence of a prayer for possession, the suit was hit by section 42 of the Specific Relief Act. 20. (Point No. ii) : Mr. Khondkar has next contended that all‑the trustees should have joined as plaintiffs in the suit. We are unable to agree with him. In July, 1948, the Calcutta High Court appointed the plaintiff as the Managing Trustee of the Trust Estate of Sanatan Nityananda Roy and hence he bad locus standi to file this suit. He further joined other trustees as pro forma defendants Nos. 26 to

33. Hence this contention of Mr. Khondkar has no substance in it. Mr. Khondkar has argued that according to clause 14 of the Trust Deed the trustees were empowered to appoint one person from among them as the Managing Trustee but there is nothing to show that the plaintiff was appointed Managing Trustee by the other trustees. The learned Judge has observed in his judgment : "By Resolution, dated 13‑6‑48, the present plaintiff was appointed to act as Managing Trustee of the Estate." The said resolution is not in the paper‑book. It seems that as this point was not seriously contested before the Subordinate Judge the resolution was not put in evidence. The fact, however, remains that on 13‑5‑48 the Calcutta High Court appointed this plaintiff as the Managing Trustee and hence he was quite com petent to file this suit. The other trustees were also made pro forma defendants in the suit. In these circumstances, we overrule this contention of Mr. Khondkar that the suit was not maintain able by this plaintiff alone. 21. (Point No. iii) : Mr. Khondkar has next urged that the notice under section 80 was bad in law. His grievance is that all the persons who gave notice under section 80 did not join as plaintiffs in this suit. In support of his contention, he has relied on the decision in the case of The Government of the Province of Bombay v. Pestonji Ardeshir Wadia and others (P L D 1949 P C 31). In the above case two trustees of a trust served on the Government the notice of a suit under section 80 of the Civil Procedure Code, but, before the suit could be brought, one of them died and two other persons were appointed trustees in the place of the deceased trustee but no notice was served on the Government on their behalf. These two persons as plaintiffs Nos. 2 and 3 along with the surviving trustee as plaintiff No. 1 brought the suit against the Government. It was held that the suit against the Government was incompetent in the absence of notice on behalf of plaintiffs Nos. 2 and 3 under section 80 of the Code. It is thus clear that in the above case notice on behalf of two of the trustees had not at all been served on the Government. Here, however, the facts are otherwise. In the instant case, all the trustees, including the Managing Trustee, sent notice under section 80 of the Code to the Collector of Chittagong. Simply because the Managing Trustee filed this suit on behalf of the Trust Estate making the other trustees as pro forma defendants, it cannot be said that the notice was bad in law. Further‑more, we think that the decision referred to above has no application here. 22. (Point No. iv) : Lastly, Mr. Khondkar has faintly argued that section 36 of the Public Demands Recovery Act is a bar to this suit. His contention is that notice was served on the former Managing Trustee Kali Mohan Saha and hence the provisions of the Public Demands Recovery Act were attracted to this case. The fact however remains that neither the said Kali Mohan Saha nor the present Managing Trustee was named as a debtor in the certificate. Now, the certificate has the extraordinary effect of a decree against the persons named in it as debtors and has the effect of binding their immovable property. But, if any one is not named in the certificate, there is no foundation for the sale of his' property. The authority to proceed to sell is based on the certificate E and, if the name of a person does not appear in the certificate, there can be no valid sale of his property : See Baijnath Sahai v. Ramgut Singh and others (I L R 23 Cal. 775 (P C)). Thus the Certificate Officer had no authority or jurisdiction to sell the share of the Trust Estate. Hence the sale, not being a sale under the Act at all, the Civil Court had jurisdiction to entertain the suit and grant relief to th aggrieved party under the general law and this jurisdiction is not ousted by section 36 or 37 of the Act : See Reajuddin Dalai v Sahamatulla Mia (60 I C 759), Pratap Chandra Jana v. Secretary of State for India in Council (35 C L J 304) and Tikendrajit Ghosh and another v. Jadav Mondal and others (44 C W N 1103). Therefore, this contention of Mr. Khondkar has equally no substance in it.

23. No other point was urged in this appeal. In the result, we agree with the decision of the trial Court and dismiss this appeal with costs. SIDDIKY, J.‑I agree. K. A. S. Appeal dismissed.