Upendra Kumar Saha vs Tara Prasanna Roy and others

Brij Narain, J.C.

The suit which has given rise to this first appeal was brought by Upendra Kumar Saha for declaration of his jote right to 10 gandas, 2 karas 1 kraut 10 dhurs land comprising of plots Nos. 618, 731, 732 and 733 and situate in bazar Udaipur (bazar Radhakishorepur). The plaintiff alleged that he along with Sreemati Sushama Devi respondent 6 applied to the Collector of Udaipur for obtaining settlement of the aforesaid land vide the application Ex. 2 and Case No. 19 of 1357 T. E. was started on this application.

As laid down in the procedure, notice was issued to the public vide Ex. 3 and it was duly served and Tara Prasanna Roy respondent 1 and Chinta Haran Saha agent of Dnirendra Kumar Saha respondent 2 signed it as also the plaintiff vide Exs. 3 (a) and 3 (b) but at the time of auction the respondents did not appear even though the auction continued from 19-12-57 T. E. to 24-12-57 T. E. when the plaintiff and the pro forma defendant Sreemati Sushama Devi offered a bid of Rs. 125/- as Nazar vide Ex. 4 for taking settlement of the property.

This bid was accepted as nobody else had given any other bid vide Ex. 5. Later on Sreemati Sushama Devi did not pay her share of the Nazar as her husband was the Naib of the Udaipur Tahsil and she promised to execute a deed of relinquishment in favour of the plaintiff who was asked to pay the entire amount of Nazar.

The plaintiff thereupon deposited the entire amount vide the chalan Ex. 6 said the Collector is alleged to have passed an order on 24-1-58.T. E. for creation of Touzi vide the order dated 24-1-58 T. E. Ex. 7 in. the name of the plaintiff and Sreemati Sushama Devi. The respondents with a view to injure the plaintiff then applied to the Collector for taking settlement of the land at a higher bid (Tide the application dated 14-3-58 T. E. Ex. 6) and the Collector then issued notice Ex. C to the plaintiff and Sreemati Sushama Devi and fresh notice for giving settlement of the land in question was issued vide order dated 17-3-58 T. E. Exs. 9 and 11 and on 28-7-58 T. E. another auction was held and respondents 1 to 5 were given tins land on payment of Rs. 6000/- and odd.

Sreemati Sushama Devi subsequently executed relinquishment deed Ex. 1 on 4-10-59 T. E. in favour of the plaintiff. As respondents 1 to 5 intended to take possession over the vacant land not covered by two huts which existed in the land between plots Nos. 618 and 733, the plaintiff had to bring declaratory suit No. 62 of 1358 T. E. (or No. 97 of 1950 A. D.) in the Court of the Subordinate Judge.

A receiver was appointed in this suit at the instance of the plaintiff vide the report dated 27-12-58 T. E. Ex. 12. The report of Phanibhusan Dev Barma, Head Amin dated 7-6-58 T. E.'' Ex. 10 was obtained in order to show that respondents 2 and 4 had constructed certain huts on the land in question without any right. This declaratory suit was dismissed on the ground that the respondents were in possession of the portions of the disputed land at least from before the suit. After the dismissal of Suit No. 62 of 1358 T. E. the plaintiff brought the present suit.

Defendants 1 to 5 contended that the suit was barred by res judicata and no valid lease was ever created in favour of the plaintiff and the auction sale was fraudulently concluded in favour of the plaintiff on 24-12-57 T. E. and the notice Ex. 3 was not validly served. According to these defendants the Collector was within his rights in conducting another auction sale as the plaintiff had been guilty_of fraud vide the petition dated 3-1-55 T. E. Ex. A, the objections dated 20-3-58 T. E. Exs. B, B (1) and B (2).

The plaintiff filed an objection to the property being reauctioned but this objection was overruled vide the order dated 15-6-58 T. E. Ex. D and the defendants'' higher bid at Rs. 6000/- and odd was rightly accepted according to these defendants vide Exs. E to G. It was further contended that the settlement of the land with the plaintiff was never complete and Collector was legally competent to settle it with these defendants as the plaintiff had been guilty of committing fraud.

No notice under S. 80, C. P. C, was served by the plaintiff on the Government of Tripura and so the Tatter was not called upon to contest the suit. The learned District Judge who tried the suit dismissed it on the grounds that even though there was a valid contract in favour of the plaintiff no five years'' tenancy was legally created in his favour simply because the auction was concluded on 24-12-57 T. E. and so the plaintiff could not maintain the present suit as against respondents 1 to 5.

It was further held that the plaintiff had been guilty of fraud in suppressing the notice Ex. 3 and also in suppressing the fact that the respondents had been in possession over a portion of the land in Question from before the application Ex. 2 was filed by the plaintiff before the Collector for obtaining the settlement of this land. The plaintiff has now come to this Court in appeal.

The documentary evidence produced in this case snows that Sreemati Sushama Devi wife or Sri Surendra Chandra Dev Barma, Naib, Udaipur Tahsil was interested in obtaining the land in question along with the plaintiff and as in the application Ex. 2 the fact of the existence of huts of the respondents on a portion of this land was suppressed and the property was settled at a very inadequate consideration of Rs. 125/- only these facts have been held to be sufficient by the learned District Judge to substantiate the plea of fraud on the part of the plaintiff.

It appears from the evidence of Upendra Kumar Saha plaintiff that the notice Ex. 3 was served by being hung on a jack fruit tree near the land in suit and the peon who served this notice only stuck it up on the tree and he took the signatures of some persons. This version is effectively rebutted by the peon''s written report which shows that the peon went to the bazar and informed the present respondents and the public of the contents of this notice.

In my opinion the main question which is to be determined in this case is whether the suit was properly framed or not. If there was a tenancy created in favour of the plaintiff he would be entitled to bring a suit against respondents 1 to 5 treating them as trespassers. But if no valid tenancy was -created in his favour and there was merely a completed contract to create a tenancy in his favour, he would not be authorised to bring a suit for khas possession against respondents 1 to 5 for the plaintiff could'' not be deemed to have acquired any interest in the land and in a suit for a specific performance it was mandatory on him to have impleaded the Government of Tripura as a defendant and to have served a notice under S. 80, C. P. C, on the Government.

The settlement was being made permanently although it was to be for five years in the first instance and under S. 17 (1) (d) such leases require registration. S. 17 (1) (d) runs as follows:

The following documents shall be registered Leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent.

In this case no registered document was executed in favour of the plaintiff and so it cannot be said that any valid tenancy was created in his favour.

The learned Advocate for the appellant has urged that according to the Transfer of Property Act a lease for more than a year or year to year can be created only by registered instrument but a lease which is governed by the Bengal Tenancy Act may be created orally also and reliance has been placed on Surendra Chandra Sen''s Bengal Tenancy Act, Ed. 4, P. 22, where in a petition of compromise which was not registered the plaintiff undertook to recognise the defendant as a tenant, it was held that although the petition of compromise, in so far as it related to properties which were not the subject matter of the suit, was not operative to affect such properties, it was nevertheless admissible in evidence as indicating the existence of an oral agreement to grant a lease which was specifically enforceable vide - ''Sarat Chandra v. Shyamchand Singh'', 39 Cal 663 (A).

If the present plaintiff had been given possession over the land in question and a Touzi had been created in. his favour, it could have been argued with some force that a tenancy was created in his favour but so long as possession was not delivered to him and no Touzi was created in his favour and no registered lease was executed in his Favour I think all that could be said in his favour was that there was a contract in his favour for creating a tenancy which could be specifically enforced.

The Tripura Tenancy Act (Act 1 of 1296 T. E.) also does not make any provision exempting permanent leases executed on behalf of the Government from registration. Such being the case the plaintiff should have brought a suit for a specific performance of the contract as against the Government of Tripura after serving a notice under S. 80, C. P. C., on the Government but this was not done and I think the present respondents 1 to 5 who claim to have got the land after paying Rs. 6000/- and odd cannot be ejected in this suit to which the Government is not a party.

The rights of the present respondents 1 to 5 cannot properly- be determined in this suit when the Government of Tripura got no proper opportunity to contest the suit as no notice under S. 80, C. P. C., was served on it. The Government of Tripura has not been given any proper opportunity in this case to show that the alleged contract in favour of the plaintiff was vitiated by fraud and it has further not been given any opportunity to show that no tenancy can reasonably be implied from the acts of the parties or that any such tenancy has been created or continued by operation of law.

The Government of Tripura was, therefore, a necessary party to this suit and not merely a proper party as without the Government of Tripura this case could not be decided at all. If the plaintiff had been given possession over the land in question the position might have been different as was held by this Court in - ''Gopi Mohan Dev v. Smt. Kadambakumari Devi'', AIR 1955 Tri 23 (B).

The learned Advocate for the respondents has contended that the revenue Court''s decision in holding that the auction in favour of the plaintiff was vitiated by fraud must be deemed to operate as res judicata in accordance with the rulings reported in - AIR 1932 623 (Lahore) ; - Kunwar Muhammad Ubaid-ullah Khan Vs. Kunwar Muhammad Abdul Jalil Khan , in which it has been held that decisions of a competent revenue Court upon questions of title must be regarded as decisions of a civil Court and can operate as a bar by way of res judicata in subsequent suits brought in the civil Courts.

Reliance has also been placed on - AIR 1945 67 (Privy Council) , in which it was held that where a sale takes place at a serious undervalue occasioned by failure on the part of the Court and of the decree-holder, the case falls within the language of O. 21, R. 90, C. P. C. In my opinion this ruling cannot be applicable to this case as O. 21, C. P. C., has no application to the present suit.

After taking into consideration the arguments advanced by the Learned Counsel of the parties, I come to the definite conclusion that the present suit was misconceived and it was liable to fail because the Government of Tripura had not been made a defendant after being served with a notice under S. 80, C. P. C, as such no interference is called for with the order which has been passed by the learned District Judge.

The appeal, therefore, fails and it is hereby dismissed with costs to the contesting respondents 1 to 5 and,7. Respondent 6 will neither pay nor receive any cost in this appeal.