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Civil Revision No. 537 of 1964, decided on 3rd August 1967.

, O. XXI, rr. 100 & 101 Resistance to delivery of possession‑M entering into contract for purchase of property with owner and paying part of contracted sale price‑M subsequently putting P into possession by transfer of his rights under a contract of sale Property put to sale in execution of fraudulent ex parte decree and put out of possession‑P's possession, in circumstances, held, was in his own rights as contemplated under r. 101 and applica tion under r. 100 maintainable.

Paryage Sahu v. Babu Chandrachur Deva and others A I R 1939 Pat. 263 and Kedar Nath Bag v. Saday Chandra Nandi A I R 1914 Cal. 580 ref.

A. S. M. Mofakhar for Petitioner.

D. C. Bhattacharjee with A. Rab II for the Opposite‑Party No. 1.

This revisional application is against an order passed by the learned Munsif 1st Court of Dacca rejecting the application of the petitioner under Order XXI, rule 100 of the Code of Civil Procedure.

The facts leading to the application are as follows. The disputed premises in holding No. 64 of Santinagar, a suburb of Dacca, with pucca and katcha houses belonged to one Uttama Sundari Devi where she lived with members of her family from before 1947. Soon after Partition Uttama Sundari Devi left for Calcutta in 1948 and made over possession of the house to one Md. Kazi Azim, the Opposite‑Party No. 10. The Opposite‑Party No. 10 Md. Azim continued in possession when he entered into a contract with Uttama Sundari for the sale of the said premises to himself for Rs. 8,445 and made a part payment of Rs. 3,145 and Md. Azim continued to possess the premises. Thereafter on 19‑5‑58 Md. Azim transferred his rights and liabilities under the said contract with Uttama Devi for a consideration to the petitioner and put the petitioner in possession ‑ of the premises undertaking at the same time to complete the transaction of sale in terms of the contract in favour of the petitioner. Since then the petitioner was in possession of the premises till 25‑8‑1961 when he was dispossessed by Opposite‑Party No. 1 Ramjan Khan on the basis of an ex parte rent decree against one Nihar Bala Sen obtained by the landlords of Uttama Devi. It may be noticed here that Ramjan Khan is admittedly an officer of the said landlords. The rent suit was filed on 16‑4‑1959 being rent suit No. 63 of 1959 for the rent of the years 1359‑62 (1952‑55). The suit was decreed ex parte on 24‑11‑1959 for Rs. 7‑4. Rent Execution case No. 65 of 1959 was started on 12‑12‑1959. Opposite‑Party No. 1 Ramjan purchased the suit property for Rs. 75 on 2nd of March 1960. It may be mentioned here that the sale proclamation put the valuation of the premises at Rs. 5 only. The auction purchaser thereafter applied for delivery of possession under Order XXI, rule 95 of the Civil Procedure Code and took delivery of possession of the premises with the help of a police force on 29‑7‑1961. The petitioner filed the application under Order XXI, rules 100 and 101 and section 151 of the Civil Procedure Code on 28‑8‑1961 and a miscellaneous case being Miscellaneous Case No. 207 of 1961 was started. Thereafter Uttama Sundari Devi filed an application under section 174 subsection (3) for setting aside of the sale on 4‑9‑1961. In both the cases Ramjan filed a written statement and both the cases were heard together. One Jatish Das a son of Uttama Sundari Devi deposed on 10th of February 1961 in the Miscellaneous Case for setting aside the sale. The Court allowed the application under section 174(3) by order dated 10‑2‑1962, subject to the deposit of the decretal dues of Rs. 7‑4 by 10‑3‑1962. It is alleged by the petitioner that in the meantime the Opposite Party No. 1 won over the said Jatish Das and the said sum of Rs. 7‑4 was not deposited and the Miscellaneous Case No. 213 of 1956 was dismissed for default on 10‑3‑1962. Thereafter the petitioners' case, that is, Miscellaneous Case No. 207 of 1961 proceeded and the Court directed that the parties should establish the identity of Nihar Bala by its order dated 25‑8‑1962. Ultimately Jatish was examined on commission at Dacca in a private house after Ramjan's application for examining Jatish at Calcutta was rejected by the trial Court and by this Court. It appears that the said Jatish Das gave contradictory evidence as to the identity of Nihar Bala with Uttama Sundari in the Miscellaneous Case No. 213 of 1959 and in the Miscellaneous Case No. 207 of 1961. The Court held that Nihar Bala and Uttama Devi was the same person and though she was wrongly described she was identifiable and was the judgment‑debtor. The Court further held that in any case the petitioners' application under Order XXI, rules 100 and 101 was not maintainable inas much as he was in possession of the property not on his own account but as a representative of Uttama. On these findings the Court dismissed the application of the petitioner. Hence this Rule. On a perusal of the papers and after hearing the learned Advocates for the petitioners and the Opposite‑Parties I am struck with wonder at the extent to which provisions of law and processes of the Court can be abused flagrantly by unscrupulous persons. It is an admitted fact that the disputed holding was a tenancy of Uttama Sundari Devi. The rent suit, however, was brought against one Nihar Bala described as wife of late Suresh Chandra Sen and giving her residence as Ram Krishna Mission Road which is situated in another suburb of Dacca. Original petition under section 174(3) of the Bengal Tenancy Act the basis of the Miscellaneous Case No. 213 of 1961 has been made Exh. I in Miscellaneous Case No. 207 of 1961. The application shows that it has been filed by Uttama Sundari Devi wife of late Jogesh Chandra Das Sharma, at first inhabitant of village Banari P. S. Rajahari, district Dacca, then the resident of Santinagar in C. S. Mouza No. 286 Rajarbag, P. S. Tejgaon at present residing at 1 Macbua Bazar, Calcutta, 7. 1t is clearly stated in the said petition that the petitioner after purchasing the disputed land measuring about half a bigha in Mirash right for Rs. 500 from Kumuda Sundari Devi was put into possession after demarcation of her purchased land and thereafter her name was mutated in the Sherista of the superior landlord and a Mirashi tenancy was created in her name with respect to the land purchased by her and she used to pay the annual Mirashi rent settled on receipt of dakhilas in her name. She has claimed further that she had constructed a pucca house on the said premises and was living there till partition and after Partition she left for Calcutta but continued to pay the rent through one Ashit Hanjan Das Gupta and the rent for 1359 B. S. to 1362 B. S. was claimed to have been paid through the said Ashit Ranjan Das Gupta and was paid to Opposite‑Party No. 1 Ramjan. In paragraph 8 she bad stated that Md. Azim was merely a tenant at will and while occupying the said house left the same without her knowledge and without notice and illegally and unauthorisedly made over possession of the same to one Obaidul Haque Chowdhury (the present petitioner). She has further said that her name and her husband's name were all known to the officer of the landlord which would be out by the papers of the Sherista. Thereafter she has given the facts leading to the auction sale and which she has characterised as fraud perpetrated on the Court which was effected by filing a suit in the name of a wrong person and obtaining an ex parte decree and purchasing the property in dispute and getting delivery of possession on a false pretext. The further allegation is made in the petition that there were no arrears in the holding as rent receipts were granted by Opposite. Party No. 1 in his own hand. With regard to the identity of the defendant in the rent suit the deposition of Jatish Chandra Das the son of Uttama Sundari has been made Exh. 2 in Miscellaneous Case No. 207 of 1961. He has deposed to the following effect :

"Joytish Chandra Das Sarma on S. A.

I am son of this petitioner. I have power‑of‑attorney. Niharbala is not my mother's nick name. I do not know her. I do not know her, nor do I know her husband. We were not in arrears.

These are the rent receipts granted by the a.p. himself who was Tahsildar of the D. H., (illegible) Akhil Das Gupta paid the rent for my mother. No notice was served upon us. No Ishtahar was served. No concise statement as ever served. We learned to the auction from a p.c. from our Care Taker. p.c. is Exh. 2. We pray for setting aside the sale. The property is worth Rs. 15 to 20 thousand.

(Sd.) Jatish Chandra Misra Das Sarnia

10‑2‑62

(Sd.) Illegible

10‑2‑62.

Exhibit 2

After the order in that Miscellaneous Case, however, this very Jatish Chandra Das has said in deposition in the present Misc. Case that

("My father's name was Jogesh Chandra Das Mista. My mothers name was Uttama Sundari Devi. She was named Nihar Bala Sen by her father. At the time when I deposed in the Court here, I did not know that my mother was also named Nihar Bala Sen. Later on, on my going back to Calcutta I learnt from my mother that the name of Nihar Bala Sen was her father's given name. My mother then told me that since there was a golmal with regard to her name, it was useless to create further golmal and proceed with the case.

Thereafter we did not appear in that case nor did we make any tadbir.

When the golmal with regard to my mother's name arose in the way Ramjan Ali Khan's man approached me and made (following) request Please tell us by means of an affidavit precisely what your mother's true name is.")

In cross‑examination he has said that ("I have stated in the aforesaid application Exh. 1 that my mother did not know the aforesaid Nihar Bala Sen (objected to by O. P's lawyer).

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.

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