Sheokumar Tewari and Another vs Central Co-operative Bank Dinapur and Others

Reuben, J.—This is an appeal by the plaintiffs in a suit for declaration of title and recovery of possession.

The suit relates to 1. 65 acres of land in village Chandar which was recorded in the record of rights, finally published in the year 1910, as the raiyati holding of one Gauri Mahton, defendant 2, holding under the plaintiffs as landlords. The case of the plaintiffs is that the settlement record is incorrect, and that the disputed land is really their bakasht land. Defendant 1 is the Central Co-operative Bank, Dinapur. It got a decree against Gauri Mahton and, in execution of this decree, purchased the suit property and took delivery of possession of it. The plaintiffs thereupon filed an application'' under Order 21, Rule 100, Civil P.C. This application was summarily rejected. Hence, the present suit.

The suit was contested only by the Bank. The main defence was that the disputed land was the raiyati land of Gauri Mahton and that the Bank had acquired a good title to the land by the execution sale.

The Munsif accepted the story of the plaintiffs and decreed the suit on contest against the defendant Bank and ex parte against Gauri Mahton, and directed the costs of the suit to be borne by the Bank alone, This decree was passed on 24-2-1945.

The Bank thereupon filed an appeal against this decision and has succeeded in obtaining a decision from the Subordinate Judge, 1st Court, Patna, reversing the decree of the Munsif and dismissing the plaintiff''s suit.

The main point which has been urged before me is that the appeal before the Subordinate Judge was incompetent, on the ground that the Bank had parted with its interest in the suit property and was no longer interested in the result of the litigation. The transfer in question is a transaction of sale by which the property on 13-12-1942 was sold to Gauri Mahton, defendant 2. It will appear from this that, at the time when the Munsif''s decree was passed and also when the first appeal was filed, the Bank had no subsisting interest in the suit property.

In support of this contention, reference is made to the case in Allahabad Bank Ltd., Delhi v. Mrs. Lena Mas Donald AIR 1921 Lah 349. That also was a case in which a bank was concerned. The plaintiff''s father had deposited a certain sum with the bank in the joint names of himself and one D, payable to "either or survivor." He subsequently made a will devising his property of every description to the plaintiff and died before the period of the deposit had expired. The plaintiffs obtained probate of the will and sued the bank and D for a declaration that the deposit belonged exclusively to the deceased and that the plaintiff was entitled to receive it on maturity as the executor of the deceased. D did not appear but the bank resisted the suit. The suit was eventually decreed. The bank appealed, impleading D also as a respondent to the appeal. It was held that the bank had no locus standi to prefer an appeal, the reason being that it was not in any way prejudiced by the decree passed in favour of the plaintiff. Their Lordships pointed out that in the bank''s memorandum of appeal not a word was said about any prejudice to the bank arising out of the decree. They further remarked that the bank would have had to pay the money to one or other of the persons concerned, and that it could not matter to the bank directly which of them received the money by the order of a competent Court.

In coming to their decision, their Lordships relied on Seshayyar v. Pappuvaradayyangar 6 Mad. 185. That was a redemption suit in which two brothers were impleaded as defendants. Defendant 2, who was the elder brother of defendant 1 was sued as being in possession of the land on behalf of defendant 1, and pleaded, among other things that on partition the property fell in the share of defendant 1 and for the last 30 years he was in possession of it on behalf of defendant 1. The suit was decreed by the Munsif. Thereupon, defendant 2 took the matter in appeal to the Subordinate Judge, who disbelieved the plaintiff''s case and dismissed the suit. In second appeal, it was held that defendant 2 had no locus standi to appeal against the decision of the Court of first instance. Their Lordships said:

If defendant 2 had set up possession on his own account and stood on his possession and put plaintiff to the proof of his title, we should agree with the Subordinate Judge as the case would then be on all fours with that on which he has relied: Sevvaji Vijaya Raghunadha Valoji Kristnan Gopalar v. Chinna Nayana Chetty (1863) 10 M.I.A. 151. But after defendant 2 had disclaimed all interest in the land on his own account and admitted that he only held possession on behalf of defendant 1, it was not open to him to contest the decree which decided in favour of the plaintiffs'' title and against defendant 1.

Both these cases were cases of pro forma defendants, not affected by the decree, attempting to file an appeal against the decree. A case more in point is that in Joti Lal Sah and Others Vs. Sheodhayan Prashad Sah and Others, . This was a suit for redemption, which was dismissed by the Court of first instance. Subsequent to this decree, the equity of redemption was allotted in a partition suit to one of the defendants of the redemption suit. The plaintiff filed an appeal against the dismissal of the redemption suit, but the appeal was dismissed by the first appellate Court on the ground that it was not maintainable, since the plaintiffs no longer had an interest in the equity of the redemption. In second appeal, a Division Bench of this Court, following the case in Raicharan Mandal v. Biswanath Mandal AIR 1915 Cal 103, held that the plaintiffs were entitled to maintain the appeal, and therefore, set aside the order of the first appellate Court and remanded the case.

The reasons for this view were fully discussed in the last mentioned case in which the facts were similar, the interests of the plaintiff in the property claimed being sole pendente lite in execution of a decree for arrears of rent. The question in appeal was whether the suit was maintainable by the original plaintiffs. The Court of first instance dismissed the suit, but this decree was reversed on appeal, a decision which was upheld in second appeal.

An attempt has been made on behalf of the appellants to distinguish these two cases on the ground that those were cases in which the plaintiff ceased to have any interest in the suit property. It is urged that the position of a plaintiff is different from that of a defendant, because by instituting the suit the plaintiff makes himself responsible for the conduct of the litigation. The decision in Raicharan Mandal v. Biswanath Mandal AIR 1915 Cal. 103, however, is based on general reasoning which is equally applicable to the case of a defendant who ceases to have an interest in the subject-matter of the suit. Their Lordships pointed out first of all that it is a recognised rule that a suit must be tried in all stages on the cause of action as it existed at the date of commencement, and that in appeal the question is whether the decision of the primary Court is correct on the facts as they stood when the judgment was rendered, and that no subsequent event or devolution of interest can affect that question. They conceded that a Court may take notice of events which have happened since the institution of the suit, and afford relief to the parties on the basis of the altered conditions. This doctrine, however, is of an exceptional character, and is to be applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. It was further pointed out that, whereas Order 22, Rule 10, Civil P.C., provides means by which a party upon whom an interest has devolved during the pendency of a suit may, by leave of the Court, continue the litigation, the Legislature, has not provided that, in the event of the persons upon whom the interest devolves not obtaining leave of the Court, the suit would stand dismissed. Finally, they noted that, at the stage when an objection of this sort is likely to be raised in the litigation neither the Court nor the parties may be in a position to decide that there has been a final and operative (sic) evolution of interest. Incidentally, they considered the hypothetical case of a defendant in like circumstances:

It may also be asked, if the contention of the appellants were to prevail what would happen in the event of a devolution of the interest of the defendants. Would the suit be heard ex parte because the interest of the defendants had passed to a stranger to the litigation or would the suit stand dismissed because at that stage it was a suit against a person who had no interest in the litigation. If the contention of the appellant were upheld, there would obviously be endless litigation and the substantial rights of litigants might be completely defeated.

In arguing that the Bank has no further interest in the litigation, it is pointed out on behalf of the appellants that the vendee under the sale deed, by which the Bank divested itself of its interest in the property, is Gauri Mahton himself, a man who was well acquainted with the facts relating to the property and the nature of the interest which the Bank had in the property. It has been urged, therefore, that in the event of the decision of the Court of first instance remaining undisturbed, it would not be open to Gauri Mahton to make any claim against the Bank. The point is not quite so simple as it appears at first sight, for under Clause (2) of Section 55, T.P. Act, there is an implied warranty of title on the part of the seller in favour of the buyer, and it has been held that this covenant of title is irrespective of the question whether the buyer has or has not notice of the infirmity of the title of the seller: vide Nawal Kishore Vs. Sarju and Another and Mt. Lakhpat Kuer Vs. Durga Prasad, It is not necessary for me to go into this point further because, apart from the reasons which I have given above for holding that the Bank had a right to file the appeal independently of whether it still had a subsisting interest in the result of the litigation, the Bank certainly had an interest in the result of the litigation, because under the decree of the Court of first instance it was directed to pay the costs of the plaintiffs. It was certainly adversely affected by this portion of the decree, and the only way in which it could get relief against it was by getting the main decree set aside. It was, therefore, entitled to appeal against the main decree.

Stress has been laid on the fact that no appeal was filed by Gauri Mahto himself, although he is the person principally concerned. Whether he appealed or not is, however irrelevant, for under the provisions of order 41, Rule 33 the appellate Court was empowered to exercise its powers in his favour.

On the above grounds the first contention fails.

Next, the decision of the lower appellate Court is challenged on the merits. It is pointed out that as long ago as 12-7-1923 Gauri Mahton executed a bazidawa or deed of relinquishment, admitting that he had been wrongly recorded as a raiyat and that the land in question is really the bakasht of the plaintiffs. It is urged that Gauri Mahto did not appear before the trial Court to challenge this admission and has not appeared to do so in appeal. It is pointed out that it is only challenged by the Bank, which has no longer any interest in the property and it is argued that, but for this opposition by a party which has no interest in the matter, the admission would have been regarded as binding upon Gauri Mahton. Hence, it is argued, the fact that the Bank denied the title of the plaintiffs should not be allowed to affect the final decision. I cannot agree that the admission contained in this document would have been regarded as binding upon Gauri Mahton even if Gauri Mahton had been the only defendant in the case: Vide Jadu Nath v. Rup Lal 33 Cal 967 and Petherpermal Chetty v. Muniandir Servai 35 Cal. 551. The document was at most a piece of evidence to be considered along with the other evidence on the record.

Apart from this document, the evidence in favour of the title of the plaintiffs consisted of the depositions of two witnesses (P. Ws. 2 and 3) upon whom the lower appellate Court, which was the final Court of fact, has placed no reliance. As against this evidence, there was on the other side the entry in the record of rights, to which the statutory presumption of correctness attaches. I am unable to say that the lower appellate Court erred in law in holding that the evidence adduced by the plaintiffs was insufficient to rebut this presumption of correctness. Another argument, which has been addressed to me on behalf of the plaintiffs is that this is a suit in which the defendants admitted the title of the plaintiffs to the land, but resisted the plaintiffs'' claim for khas possession on the assertion that they, the defendants, have acquired the right to remain on it as tenants. In these circumstances, it is contended, the onus of proving their right to remain on the land was on the defendants. This may be so, but as soon as the defendant produced the settlement record showing that Gauri Mahton was a raiyat in respect of this land, the initial onus was discharged, and it was then for the plaintiffs to establish that the entry in the record of rights was incorrect.

Finally, an attempt was made on behalf of the appellants to adduce before me certain documentary evidence. This documentary evidence, it appears, consists of a certified copy of a mortgage deed executed in 1929 by Gauri Mahton in favour of the Bank, mortgaging some land other than the land in suit. The reason for which this evidence is offered is to meet an argument, on which the first appellate Court has relied, that the bazidawa executed by Gauri Mahton in favour of the plaintiffs was obviously a fraudulent document, because only two days later Gauri Mahton proceeded to borrow money from the Bank. The provisions regarding the admission of further evidence in appeal are contained in order 41, Rule 27. Such evidence may be admitted (a) if the Court from whose decree the appeal is preferred has refused (sic) admit evidence which ought to have been admitted or (b) if the party seeking to adduce additional evidence satisfies the appellate Court that such evidence, notwithstanding the exercise of (sic) due diligence, was not within his knowledge on (sic) could not be produced by him at the time where (sic) the decree or order under appeal was passed (sic) made, or (c) if the appellate Court requires (sic) document to be produced or any witness to (sic) examined to enable it to pronounce judgment, or for any other substantial cause. The documents which is now sought to be put in evidence was not refused by either of the Courts below. Further (sic) it appears that it was in the possession of the appellants at the time of the trial, and was actually found on the record of the case during the hearing of this very appeal. Clauses (a) and (b), therefore, have no application. I see no reason for exercising my discretionary powers under Clause (c) for taking this document into evidence.

On the above grounds the appeal fail and is dismissed with costs.