Nagendra Nath Biswas vs Hrishikesh Bhandari

P.N. Mookerjee, J.—This appeal under Clause 15 of the Letters Patent is at the instance of the Defendants. It is directed against a decree of this Court (Chatterjee J.) decreeing the Plaintiffs'' suit for inter alia declaration of their title to the disputed property and other consequential and appropriate relief�s.

The suit was decreed by the learned trial Judge but, on appeal to the first appellate Court, the said decree was reversed and, on second appeal to this Court, our learned brother Chatterjee J. set aside the decision of the first appellate Court and restored that of the learned Munsif.

The relevant facts lie within a short compass and may be stated as follows:

The Defendants Appellants are the heirs of two persons, Akshoy Kumar Biswas and Benoy Kumar Biswas, who held a permanent tenure, which was mortgaged to one Bhusan Dalai. This mortgagee purchased the said tenure in execution of his mortgage decree and took delivery of possession on December 12, 1934. From this mortgagee decree-holder auction-purchaser one Sushil Adhikary purchased the said tenure by a kobala dated March 7, 1939. Under the tenure, there was a raiyati held by one Haridas Sadhukhan, which was purchased by Sushil on April 9, 1940. Thereafter, Sushil, by a- kobala dated July 17,1946, sold his entire interest to Tarapada Bhandari, father of the present Plaintiffs Respondents. In Title Suit No. 56 of 1943, the Defendants-Appellants obtained a decree for reopening the original mortgage decree of Bhusan on February 7, 1951, and under the terms of the said decree for inter alia restoration of the mortgaged property they claim to have obtained possession on April 19, 1951. Thereafter, the present Title Suit No. 445 of 1954 was instituted by the present Plaintiffs against the Defendants Appellants- for declaration of their title to the raiyati, mentioned above, namely the raiyati of Haridas Sadhukhan, purchased by Sushil Adhikari as aforesaid, and passing on them by reason of their father''s purchase from Sushil.

The principal question which arises before us and which arose before the Courts below, is whether, in the circumstances, stated above, the Plaintiffs'' suit can succeed.

The learned trial Judge held in favour of the Plaintiffs both on the question of title and also on the question of possession and decreed their suit in full. On appeal, as we have already said, the said decree was set aside and, on further appeal to this Court, the learned trial Judge''s decree was restored by our learned brother Chatterjee J. It is against Chatterjee, J. above decision that the present appeal has been filed under Clause 15 of the Letters Patent by the Defendants Appellants.

For determination of the dispute between the parties, it is necessary to consider the effect of two statutory provisions, namely (i) Section 36 of the Bengal Money Leaders Act and (ii) Section 22(1) of the Bengal Tenancy Act. The Defendant''s contention is that, as a result of the restoration order or the restoration, following u/s 36(2) of the Bengal Money Lenders Act in consequence of the reopening of Bhusan''s mortgage decree, they will be entitled in the facts and circumstances of this case to the tenure, unburdened with the raiyati referred to hereinbefore. In support of their contention they rely on Section 22(1) of the Bengal Tenancy Act and, according to them, under the said statutory provision, Sushil''s purchase of the said raiyati on April 9, 1940, had the effect of extinguishing the same, as Sushil, having at that time the superior or the tenure interest in 16 as and having purchased the subordinate or the raiyati interest in 16 as., would hold the property under the terms of the said section only as tenure holder; in other words, there would be merger or fusion of the two interests and the raiyati will be extinguished. The restoration, therefore, according to the Defendants-Appellants, would be of the tenure which at the time of such restoration was unburdened with any raiyati, the same having been extinguished in the meantime as aforesaid.

6.1 The Respondents, on the other hand, contend that under the terms of the restoration section, namely, Section 36(2)(c) of the Bengal Money Lenders Act, the Appellants would be entitled to restoration only of the identical property which was taken from them by the decree-holder auction-purchaser in execution of the reopened mortgage decree, that is, the tenure burdened with the raiyati mentioned above; in other words, they contend that their acquisition of the raiyati in the meantime would not be affected by such restoration would be without prejudice to and keeping alive their said raiyati interest. It is on this footing that they claim to be entitled to a declaration of their raiyati interest in the present suit.

In the view, which we are taking, it is not necessary for us to go into the reasons, giving by the Courts below for their respective views. We are approaching the problem from an altogether new standpoint which makes it unnecessary for us to go into the said reasons.

It seems to us that, although the reasons given by our learned brother Chatterjee, J. and the learned Munsif, may not suffice for justifying their ultimate conclusion in favour of the Plaintiffs-Respondents, there may be a new approach to the problem before us, which will support and justify that conclusion. We would, accordingly, indicate only this new Approach for the purpose of sustaining the judgment and decree of our learned brother Chatterjee J. and dismissing this appeal.

It is clear from the terms of Section 36(2)(c) of the Bengal Money Lenders Act that the restoration, contemplated under the said statutory provision, would be of such property, if any, of the judgment-debtor, acquired by the decree holder in consequence of the execution of the reopened decree as may be in the possession of the decree-holder on the date on which the decree was reopened.

The term ''decree-holder'' would, of course, include his legal representatives and would, as a matter of law, apply to persons who are not bona fide transferees from him: vide Section 36(5) as also Clause (b) of Section 36(2). It is in this view that the order of restoration has been made in the instant case against the present Plaintiffs. That order, however, must be given the interpretation in consonance with the above statutory provision [Section 36(2)(c)] which, in essence, speaks of restoration of the identical property which was taken from the judgment-debtor in execution of the reopened decree. The identity will be lost, if the property which was at the time of the decree-holders'' purchase of the same, burdened with a raiyati, becomes free from the same in the meantime. If merger u/s 22(1) is to be given effect in this case, the result will be that a burdened tenure will become an unburdened tenure. This, however, may stand in the way of the judgment debtors'' getting restoration u/s 36(2)(c) of the Bengal Money Lenders Act, as the identity of the property would not then be preserved. Section 22(1) of the Bengal- Tenancy Act, however, expressly provides that the merger contemplated therein would not prejudice the right of any third party vis-a-vis the acquiring tenure holder and the raiyat, whose interest was acquired by him. The original mortgagor or judgment-debtor would, obviously, be in the position of such a third party and Section 22(1), therefore, cannot prejudicially affect his right of restoration; or, in other words, the merger contemplated u/s 22 would be subject to such right and the latter would predominate. The only way, however, of giving effect to the above position would be to hold that, in such circumstances, the merger contemplated by the statute [Section 22(1) of the Bengal Tenancy Act] would be overridden to give effect to the statutory right of restoration u/s 36(2)(c) of the Bengal Money Lenders Act, which gets additional strength in the matter from the non-obstinate clause in the preceding basic and parent provision, Section 36(1) applying to it and protecting it from the onslaughts of other statutes. In that view, the case would come within the exception contemplated by the statute itself, namely Section 22(1) of the Bengal Tenancy Act, for protection of the third party''s interest and the rule of merger would not apply or come into play. Indeed, if merger be given effect, the judgment-debtor''s right of restoration u/s 36(2)(c) would be -prejudiced and that is not the intention of the merger section [Section 22(1)] itself and would be opposed also to the non-obstinate clause, protecting the relief or restoration as introduced in the restoration section [Section 36(2)(c)] as explained hereinbefore. In this view, in the facts and circumstances of the instant case, the merger contemplated by Section 22(1) would not take place with the result that, vis-a-vis the mortgagor judgment-debtor, the two interests, the tenure and the raiyati, would be kept separate and distinct and the said judgment-debtor would be under the restoration order in question entitled only to restoration of the tenure interest as distinguished or distinct from the raiyati, which would be kept fully alive and independent of the tenure and the restoration, of the latter to the mortgagor judgment-debtor u/s 36(2)(c) would not affect the former. This will be, in our view, the proper interpretation of the restoration order as the other interpretation, having the effect of holding that the judgment-debtor would under it be entitled to restoration of the tenure unburdened with the raiyati, would militate against the express terms of the restoration section itself, namely, that the restoration would be of the identical property and thus go against the non-obstinate clause also. Our above interpretation will be in full accord with law and equity and will meet the ends of justice without doing violence to the language of the statute or statutes in question and without impairing either of the two statutory provisions concerned and giving full effect to the same. -

We may point put further that any other view would have militated against the terms of Section 36 as, taking the converse case of a mortgage of the raiyati interest and purchase by the mortgagee decree-holder of the same in execution of the mortgage decree and subsequent acquisition by him of the superior or tenure interest, if merger u/s 22(1) be given effect, the mortgagor judgment-debtors'' right to get back restoration would be defeated. But that certainly cannot be done in view of the non-obstinate clause in the preceding basic or parent Sub-section (1) of Section 36, governing Sub-section (2), which is in substance a provision codifying the consequences of the reopening of a decree under the said Sub-section (1). This converse case sufficiently demonstrates that, in cases like the present, the merger and fusion of the interests concerned u/s 22(1) of the Bengal Tenancy Act cannot take place as, otherwise, there will be prejudice to the interest of a third party, namely the judgment-debtor mortgagor, as already pointed out by us.

We would, accordingly, hold that as a result of the restoration order the Defendants-Appellants would be entitled to restoration only of the tenure as distinguished or distinct from the raiyati, which will remain with the present Plaintiffs. In this view, we would hold that the Plaintiffs'' title to the disputed raiyati has been rightly declared by our learned brother Chatterjee J. and their suit has been rightly decreed.

In the premises, this appeal will fail and it will be dismissed.

There will, however, be no order for costs in this Court.

Amiya K. Mookerji, J.

I agree.