Bhagwandutt Singh vs Lachmi Narayan Singh and Others

Das, J.—In this case the plaintiffs sued to recover possession of certain occupancy holdings which admittedly at one time belonged to one Isri Teli. The defendants firs!; party who are the co-sharer landlords of the present plaintiff''s instituted a suit against Isri Teli for recovery of arrears of rent and recovered a decree in due course and proceeded to execute that decree.

The disputed lands were ultimately put up for sale and were purchased by the defendants second party. There were partition proceedings between the plaintiffs and the defendants first party and the disputed lands have been allotted to the takta of the plaintiffs. The plaintiffs contend that the decree obtained by the defendants first party against Isri Teli was only a money-decree and did not operate to convey the holding to the defendants second party, but only operated to convey the right, title and interest of the -judgment-debtors in those lands. The plaintiffs also contend that, there is no custom of transferability of occupancy holdings in the village and they alleged that the purchase was really by the defendants first party in the benami name of the defendants second party. In the circumstances they claim to recover possession of the disputed lands. The Courts below have acceeded to the claim and the defendants second party appeal to this Court.

A question was raised before us that the appeal has abated as one of the plaintiffs died and no substitution was made in his place. The question is a difficult one; but in the view which I take of this case, it is not necessary for me to decide the point. I am of opinion that the appeal must fail on the merits. It is not disputed by the appellants that the decree obtained by the defendants first party against Isri Teli was a money-decree. That being so, the holding could not pass at the auction sale which subsequently took place.

But it is contended on behalf of the appellants that the proceedings for execution were taken under the Bengali Tenancy Act as if the decree obtained by the defendants first party was a rent] decree, and as the present plaintiffs did not take objection to the form in which execution was taken out, they are now estopped from contending that the decree was a money-decree. In my opinion, it is impossible to give effect to this contention. Execution was taken) not by the present plaintiffs but by the defendants first party. The present plaintiffs made no representation whatever. It is true that they did not point out to the executing Court that the decree could not be executed as a rent decree; but also it is true that they took no steps to indicate that in their view the decree was a rent decree. It is contended that the purchasers, the defendants second party were misled by the silence of the present plaintiffs. I am unable to agree with this contention. A silence cannot operate as an estoppel unless it is established that there was a duty to speak. I can see no reason whatever why the plaintiffs should take part in the execution proceedings and bring to the notice of the Court that the form adopted by that Court was wrong. The present plaintiffs were not embarassed by the decree which was passed in that case and it was no part of their duty to take part in the execution proceedings. It was contended that the case falls u/s 47, Civil P.C., and that section operates to bar the present suit. I am unable to agree with this contention. The test is whether it is possible to give a decree to the plaintiffs without disturbing the execution which has taken place. It is obvious that the decree passed in this case does not touch the execution proceedings.

I am of opinion that the view taken by the Court below is right and this appeal fails and must be dismissed with costs. The other appeal is not pressed and is dismissed but without costs. Let the records be sent down forthwith.

Fazl Ali, J.

I agree.