Ananda Moyee Debi vs Durgesh Nandini Debi

K.C. Sen, J.—These two appeals have been heard together as they arise out of one judgment passed by the learned Subordinate Judge of Burdwan affirming the decision of the Munsif, 1st court, Katwa. The Plaintiff, Durgesh Nandini Devi, brought two suits in the court of the Munsif of Katwa respectively the Title Suit Nos. 30 of 1961 and 29 of 1951. In the former the Defendants were Naba Nalini, Ananda Moyee and others and in the latter, the Defendants were Ambuja Bala, Bhujangini and Kalachand. In both the suits, the Plaintiff sought for a declaration of her eight annas interest in the lands in dispute, viz., those recorded in khatians Nos. 416 and 76 of mouza Sitalgram and for khas possession of her share of lands by partition thereof.

The facts which are not disputed are stated as follows:

There were two groups of Pal Choudhury Zamindars. One Bholanath Dutta took putni settlement of eight annas interest of the disputed lands along with other lands under the cosharer zamindars, Nrisingha Pal Choudhury and others. Under another set of landlords, viz., Bibhuti Bhusan Pal Choudhury and others, no piitni settlement was given and the disputed lands were under two groups of landlords, viz.'', eight annas share of Bhola Nath Dutta as putnidar and others represented by Bibhuti Bhusan Pal Choudhury and others. Against the ex-tenants, Bholanath D''utta and Bibhuti Bhusan Pal Choxidhury brought rent suits and in execution of the decrees thereof put the disputed lands to sale. After the sale, they remained in khas possession as auction purchasers. Thus, while Bholanath Dutta was in khas possession of his eight annas share in the auction-purchased lands, the putni, belonging to him was put to auction sale and auction purchased by the Plaintiff on the 1st of Jaistha, 1343 B.S. Thus, the Plaintiff began to hold the disputed lands in khas along with her cosharers, the zemindars, Bibhuti Bhusan Pal Choudhury and others. The putni was again put up to sale while it was in possession of the Plaintiff and purchased by the enght annas cosharer landlords, Nrisingha Pal Choudhury and others on the 1st of Jaistha, 1345 B.S. The next chain of events are that the present Plaintiff brought a suit before the Munsif, 1st Court, Katwa, on May 15, 1939 for setting aside the putni sale. This suit continued in the court of the 1st Munsif of Katwa till November 15, 1939 and it was returned to the filing pleader for presentation to the proper court on the objection of the Defendants landlords, as to the valuation of the suit. On the following day, the plaint was filed in the court, having proper pecuniary jurisdiction, i.e., November 16, 1939. Ultimately, the Plaintiff obtained a decree and the putni sale was set aside under orders of this Court on December 27, 1947. After she became successful, she went to take possession of the disputed lands but was resisted by the Defendants Nos. 1 and 2 in Title Suit No. 30 of 1951 and by the Defendants Nos. 1-3 in Title Suit No. 29'' of 1951. These Defendants took the plea that they had obtained tenancy right by virtue of leases created in their favour by the auction purchaser of a putni, viz., Nrisingha Pal Choudhury and others. This being the assertion of the Defendants, the present title suits were brought for declaration of her title and for khas possession by partition. It is stated in the plaints that the creation of the tenancies in favour of the principal Defendants was mala fide and as such they had not acquired any title by virtue of any lease. Accordingly, it was averred that she is not bound by the settlement made by the said Pal Choudhuries.

The defence in both the suits was that the leases were granted by the two groups of Pal Choudhuries bona fide and in due course of management and they are binding on the Plaintiff, after the Plaintiff obtained the decree for setting aside the auction sale, her title has not been disputed and it has been contended that by virtue of the subsequent settlement, she was only entitled to receive rents.

Both the courts below have held that the settlement of tenancy in favour of the principal Defendants was not bona fide and that such settlements are affected by the doctrine of Lis Pendens as provided for in Section 52 of the Transfer of Property Act.

In these appeals Mr. Dhar appearing for the Appellants contends that following the principle decided in Binad Lal Pakrashi and Ors. v. Kalu Pramanik and Ors. ILR (1893) Cal. 708, the leases created in favour of principal Defendants should be treated as bona fide. His contention further is that although the doctrine of Lis Pendens may be attracted in appropriate cases, the tenancy created by Nrisingha Pal Choudhury cannot in any way be affected by this doctrine as it was created before the filing of the title suit in a competent court, in which the auction-purchase made by Nrisingha Pal Choudhury and others was set aside. He has also challenged the findings of the learned Subordinate Judge by stating that he was wrong in his conclusions in holding that no tenancy was created with the consent and approval of the landlords.

I shall discuss in the first instance whether this settlement in favour of the Defendants by Nrisingha Pal Choudhury and others is affected by the doctrine of Lis Pendens. In order to come to a conclusion, some dates are very material. The putni sale took place on the 1st Jaistha, 1345 B.S. The previous suit-was instituted on May 15, 1939 and I have observed before that the plaint in this suit, viz., title suit No. 69 of 1939 was returned to the filing pleader for presentation to the proper court on November 15, 1939 and it was refiled at Burdwan Court on the following day i.e., on November 16, 1939. It appears from the record that the transactions regarding creation of tenancies in favour of the Defendants as found by the learned Subordinate Judge took place between May 15, 1939 and November 15, 1939 and, therefore, he, on a consideration of a Rangoon decision in Ma Than v. Maung Ba Gyan AIR [1927] Rang. 145 has come to his conclusion that the Katwa Court was a competent court as contemplated by the proviso of Section 52 of the Transfer of the Property Act, although it was wanting in pecuniary jurisdiction. As regards the transactions, I shall deal with them later on but, before that I shall proceed to decide on the question of law whether the doctrine of Lis Pendens in such a case may be attracted. In this Court, Mr. Dhar has argued with reference to various decisions that Katwa Court in which the Title Suit No. 69 of 1939 was filed ceased to be a competent court from the date of its filing as soon as it was found that it had no jurisdiction to entertain the same. Accordingly, the period from May 15, 1939 to November 15, 1939, viz., the period during which the title suit No. 69 of 1939 was being proceeded with in the Katwa Court is of no avail to the Plaintiff for attraction of the doctrine of Lis Pendens. The decisions which have been cited before me need not in detail be discussed as they are referred to and discussed in the recent Patna Case Ram Kishum v. Ashirbady ILR (1950) Pat. 699. This decision was made with regard to the validity of a petition of compromise which was filed in the court which was not competent to try the previous suit for want of pecuniary jurisdiction.

The decision runs as follows:

A suit cannot be said to have been instituted so long as the plaint is not presented before the court competent to try the suit. When the court before whom the plaint is filed returns it on the ground that it has no jurisdiction to try the suit and the plaint is presented before the proper court, the suit is to be considered as instituted on the date of such presentation, and cannot be regarded in any sense, a continuation of the suit before the former court.

In coming to the above decision, their Lordships of the Patna High Court have referred to the Calcutta cases Hedlot Khasia v. Koran Khasiani (1911) 15 C.L.J. 241, Bimala Prasad Mukherji v. Lal Moni Devi (1925) 30 C.W.N. 90. Thadi Chandrayya and Others Vs. Vaitla Seethanna and Another, , Ramdutt Ramkissendass v. E.D. Sassoon and Co. ILR (1928) Cal. 1048 P.C. Various Madras, Allahabad and Patna decisions were also referred to. Having considered the decisions made therein, in conclusion their Lordships of the Patna High Court have observed as follows:

But once the jurisdiction of the Court has been challenged and the Court has decided that it has no jurisdiction to entertain the suit and he directs the plaint to be presented before a Court competent to entertain it, the matter ends there. The Court thereafter is functus officio. The plaint when it is returned to the Plaintiff for being presented to the proper Court may or may not be so presented by him. It may be subject to limitations. It may be also subject to payment of proper court-fees. Therefore, this argument of the learned Counsel for the Appellant does not in any manner lead to the inference that the subsequent institution of the suit in a Court of competent jurisdiction is a mere continuation of the previous proceedings.

Although this case has been decided as to the validity of a compromise petition filed before a court which had no competence to try the suit, yet as. a general principle, it can be held that the court which has no pecuniary jurisdiction is functus officio and whatever may be done during the pendency of a suit in an incompetent court cannot be treated to be affected by the doctrine of Lis Pendens. In Section 52 of the Transfer of the Property Act the words "court of competent jurisdiction" have been used in its proviso. The Patna decision was made long after the amendment of 1929 incorporting the proviso and, as such, I have no hesitation in accepting the principle decided therein. In the circumstances, in this particular case, if any lease was granted by the Pal Choudhury landlords having eight annas interest during the pendency of T.S. 69/39 in the Katwa Court, that cannot be affected by the doctrine of Lis Pendens.

The most important thing is whether the transaction of leases should be considered as bona fide. The finding regarding the conduct and the bona fides of the Defendants have been independently made by both the courts irrespective of the fact whether the doctrine of Lis Pendens would apply or not. Accordingly, it has to be seen whether the finding of facts as made by them is so perverse that this Court may be asked to interfere with it in Second Appeal. The trend of the recent Supreme Court decision is that unless the finding are perverse, they cannot be interfered with even though they may be erroneous. The learned advocates of both sides have argued at length about the bona fide or mala fide nature of the transactions. It will appear that in Title Suit No. 30 of 1951, one Naba Nalini was impleaded as being tenant of the other group of the Pal Choudhury landlords, viz., Bibhuti I Bhusan Pal Choudhury. She has, however, no connexion with the jamas created with respect to the night annas interest of the Plaintiff but she was rightly impleaded in this Court as a question of partition by metes and bounds arose. It was also necessary to do so as the lease in his favour by Bibhuti Bhusan Pal Choudhury and others was granted contemporeneously with the other Defendant No. 2 Ananda Moyee. I have already observed before that the previous suit was instituted on May 15, 1939 and the defence case is that the tenancy in dispute was created in Jaista 1346 B.S. in favour of Ananda Moyee, the Defendant No. 2, in Title Suit No. 30 of 1951, corresponding to May 1939 and in support of her case she has put in dakhilas showing payment of rent with effect from 28th Magh, 1346 B.S. They purported to have been granted by a Gomostha, viz., Baidya Nath Samanta. It has been over printed on the dakhilas that a Gomostha was not authorised to grant any settlement. This has been corroborated by D.W. 4. Both the courts below have found the authority of the Gomostha to grant the lease is extremely doubtful and unless any ratification by the landlords is proved the settlement given by the Gomostha regarding the creation of the tenancies in favour of Anandamoyee cannot be proved. The learned Subordinate Judge''s reason are that although one of the defence witnesses has said that the payment has been entered in the account books of the Zamindars, but those account books have not been produced and non-production of the same belies the story of the Defendants that the settlement was ratified by the landlords. As regards the Defendants in the other suit, viz., 29 of 1951, the position is on the same predicament. In this case, the defence was that the settlement was given from before the institution of the previous suit, viz., from Baishakh 1346 B.S. There is no evidence as found by the learned courts below that selami was received by the zamindars or by the Gomostha with their consent. On this ground it has been said that the lease created in favour of the Defendants in Title Suit No. 29 of 1951, cannot be said bona fide. With reference to other documentary evidence also it has been found that the alleged settlement was made sometime after the previous suit in the Katwa Court was filed. Mr. Dhar has referred me to exhibit A(9), dakhila, granted in favour of Anandamoyee, Defendant No. 2, in title suit No. 30 of 1951. From this document, it will not appear that the tenancy was really created in Baisakh 1346 B.S. What appears from this document is that the rent for the last quarter of 1346 was being realised. Accordingly, I am in agreement with the finding of both the courts below that the settlement was given during the pendency of the previous title suit in Katwa Court from Jaistha, 1346 B.S.

In the courts below several amalnamas were produced but it appears that they were not admitted into evidence presumably because after they were, impounded as leases no stamp duty was paid. Therefore, no reference to these documents, to show the validity of the leases can be made. The learned Subordinate Judge has not referred to these amalnamas at all and in this Court also no reference to these documents can in any way be made. Accordingly, both the courts have found as a fact that the, Gomostha had no power to make the settlement and that whatever rents and selaonis were accepted they were not remitted to the landlords as no collection papers maintained by the landlords have been called- for in support of the defence case. Further it has been held that" the principal Defendants wanted to take settlement in a breakneck speed when the previous suit in the Katwa Court was filed. Although I have found that such (transfer during the pendency of the previous suit in the Katwa Court will not be affected by the doctrine of Lis Pendens yet the; conduct of the parties will go to show that soon after the institution of the suit, the settlement was entered into and such a fact would warrant the conclusion that the principal Defendants, wanted to take the risk of creation of tenancies so that they might either stand or fall, on the result of the suit which was instituted. This in my opinion goes to show that the intention of the Defendants was not at all bona fide and they wanted to make an unconscienable bargain at the instance of the Gomostha, who had no authority to make settlement and their action in this regard does not appear to have been ratified by the landlord. I have already said that Nrisingha Pal Choudhury and others made the auction sale of the Plaintiff''s putni in 1345 B. S. and if the intention, to take settlement was really bona fide, there is no reason to think why the settledlent was not taken earlier and the fact that the date of settlement synchronises with the date of institution of the previous suit is a real pointer to the mala fide nature of the transaction as observed before.

Both the courts have concurrently found that the transactions were, mala fide and their findings not being perverse cannot be interferred with in this Court. Mr. Dhar has relied upon the decision Binad Lal Pakrashi v. Kalu Paramanik Supra. This decision envisages that the bona fide settlement of lands even by trespassers would be protected. I am of opinion that this decision is of no avail to the Appellants as it has been found as a fact that the transaction entered into by the Defendants was not at all bona fide and, they are in the nature of mere speculations decision Binad Lal Pakrashi v. Kalu Pramanik Supra. This decision, which was instituted previously. Mr. Dhar has also referred me to a decision reported in Jahurmul Babu v. Keramutullah Molla and Ors. (1918) 45 Ind. Cas. 196. Their Lordships of this Court has decided as follows:

In the absence of evidence to the contrary, the ordinary presumption would be that the gomosta of a landlord performed his duty and duly delivered the rent collected by him to his employer the landlord. Therefore, independently of the question whether a gomosta had authority to grant an amalnama or settle a holding the receipt of rent by him on behalf of his employer from the person in occupation of a holding is sufficient to prove the tenancy of the latter.

I am of opinion that in these cases the Defendants will not be entitled to the presumption that the Gomosta performed his duty and duly delivered the rent collected by him to the employer, the landlord, in view of sufficient evidence in record to show that the Gomosta had no authority to make settlement and even if there was such a settlement, it was never ratified by the landlords.

In the circumstances, although I do not agree with the learned Subordinate Judge that the transactions are affected by the doctrine of Lis Pendens, yet, I have no hesitation to find that irrespective of the application of this doctrine, the mala fide nature of the transaction has been proved and the concurrent findings of fact by both the courts are not liable to be interfered with in this second appeal, in the absence of any material in the record to show that they are tainted with perversity. In the result, the appeals must fail and they be dismissed with costs.