HARAKALI BOSE Vs. SM JANAKI DEVI CHOUDHARANI

JUDGEMENT

(1.) Defendant 2 is the appellant before this Court. The plaintiff brought the suit for declaration that the auction sale in Certificate case No. 56/BH of 1939-40, held on 15-7-1940 in the Court of the Certificate Officer, Dhanbad, was vitiated by fraud and collusion on the part of the defendants, and, therefore, the sale was null and void and did not bind the plaintiff, and her rights in the property sold, the property in suit, were not affected by the said auction sale. There were other consequential reliefs also asked for. Defendant 1 is the auction purchaser at the certificate sale, and defendant 2 is a purchaser of a part of the property auction-purchsed by defendant 1.

(2.) Sometime in 1301 B. S. by a registered deed, of lease, the proprietor of the Jharia Estate leased out the underground rights of mauza Balliary to four persons, namely, Durga Prasad Singh, Hardayal Singh, Rameshwar Chakravarty & Ramkalpa Chakravarty. Each of these four persons had equal shares, namely, four annas each. Later, in 1307 B. S. Durga Prasad Singh, Hardayal Singh, Rameshwar Chakravarty and the two sons of Ramkalpa Chakravarty namely Nagendra-nath Chakravarty (defendant 3) and Kishori Mohan Chakravarty (defendant 4), then minors, through their guardian, Ramchandra Chakravarty, granted a permanent mokrrari lease to Chunilal Marwari and Srimati Matkuri Dasi in respect of 279 bighas of underground rights in the aforesaid mauza Balliary on a minimum royalty of Rs. 1.3957-per year, besides commission etc. There was a partition in the family of defendants 3 and 4, and, by partition, defendants 3 and 4 each got 17/62nd share in the four annas interest once belonging to Ramkalpa Chakravarty in the said mauza. By two registered sale deeds, dated 17-10-1932 and 25-8-1933, defendants 4 ana 3, respectively, sold share in the aforesaid 279 bighas of coal land to the plaintiff. The sale deed of defendant 3 was for a sum of Rs. 1,900/- and the one by defendant 4 was for a consideration of Rs. 2,500/-. The plaintiff, therefore, got the entire interest of defendants 3 and 4 in the lease granted to Chuniial Marwari and Srimati Maturi Dasi. The plaintiff, from the dates of purchase, came in possession of the property sold to her and she had been realising royalty, commission etc., from the sub-lessees. Chunilal Marwari and Srimati Matkuri Dasi, who had started a private limited liability company known as "Chunilal Tikamchand Coal Company Limited". To be more exact, the company had been started by the heirs of Chuniial Marwari and by Srimati Matkuri Dasi. The lessees from the proprietor of the Jharia Estate, including the plaintiff, were liable to pay royalty and cesses to the Jharia Mines Board of Health. The said Jharia Mines Board of Health, which will hereafter be referred to as the certificate-holder, filed a certificate case No. 567BH of 1939-40 in the Court of the Certificate Officer, Dhanbad, for royalty and cesses for the year 1938-39 in respect of the Balliary mines against the plaintiff and defendants 3 to 5 and defendants 7 and 8 for a sum of Rs. 257- only. The certificate-holder executed the certificate and put up the Balliary mines to auction, and, at the sale, defendant 1 purchased the whole of the Balliary mines on 15-7-1940, for a sum of Rs. 50/-only. It is to be noted that the Balliary mines consisted not only of the 279 bighas of coal land mentioned above, which were leased out to Chuniial Marwari and Srimati Matkuri Dasi, but it consisted of several other mines. Defendant 1 got delivery of possession on 8-9-1942. On 1-10-1942, defendant 1 sold to defendants 7 and 8 the interest which originally belonged to them before the auction sale for a sum of Rs. 19-8-0. These defendants 7 and 8 were purchasers from father of defendants 3 and 4. Defendant 1 sold the interest in the auction sale belonging to the plaintiff to defendant 2 for Rs. 500/-. Although there is no document showing the sale of the interest of defendants 5 and 9 to them toy defendant 1, who was the auction purchaser of the whole of the interest, defendants 5 and 6 dealt with the property, as will be considered later, as if there was no sale in the certificate case. Defendant 2 instituted a suit No. 192 of 1943, against the sub-lessees namely, Chunilal Tikamchand Coal Company Limited, and also against the plaintiff for arrears of royalty in the Court of the Munsif at Dhanbad claiming a decree for Rs. 799/- as being the arrears of royalty and com-mission; the plaintiff was made party because, it was alleged, she had wrongly realised royalty from the sub-lessees for the period in suit. The plaintiff, as alleged by her, got information for the first time about the certificate sale after receipt of the summons of this suit, and then she learnt of the sale and of defendant 1 being the auction-purchaser at the sale. She instituted inquiries in the certificate office and obtained copies of certain documents relating to the certificate sale. She alleges that, before the summons in suit No. 192 of 1943 by defendant 2, she had absolutely no information about the certificate case or the certificate sale. It is said by the plaintiff that none of the notices required by law under the Public Demands Recovery Act was served upon her, and under the special circumstances of this case, she alleges that all the processes in the certificate case were dishonestly and fraudulently suppressed by or on behalf of defendants 3 to 8 in collusion with the process servers, and the plaintiff was kept deliberately in dark and she could not know about the certificate case as all the processes had been fraudulently suppressed with a purpose. She says that this device of fraudulently suppressing the processes- in connection with the certificate and the certificate sale was adopted in order to deprive the plaintiff of her rights in the property. She further alleges that defendant 1, the auction purchaser, is a servant and employee of defendants 3 to 8 and his purchase is a purchase 'benami' for those defendants. It is further alleged that defendant 2 also is a benamidar inasmuch as his purchase from defendant 1 is merely a sham, transaction and in fact, he is acting as benamidar of defendants 3 to 8. The plaintiff says that defendants 3 to 8 and the plaintiff were jointly and severally liable for the certificate dues, taut defendants 3 to 8 brought about the sale and did not pay the paltry sum of Rs. 25/-, for which the certificate case was instituted, deliberately and dishonestly with the sole motive of depriving the plaintiff of her valuable rights. The value of the ' property is said to be Rs. 6,000/-, the annual income of the property being Rs. 199-4-0 as minimum royalty. It is said that no delivery of possession was ever given and that the plaintiff is still in peaceful possession of her share of the property by realising royalty and cesses from Ghunilal Tikamchand Coal Company Limited. On these grounds, the plaintiff wants the relief mentioned above. The property in suit comprises of the right, title and interest in. 17/31st share in four annas' interest of 279 bighas of coal land worked by the said private limited company, the details of the property having been given in the schedule to the plaint.

(3.) Several written statements had been filed by all the defendants. Defendant 1 pleads that the nut is bad for defect of parties because the Chairman, Jharia Mines Board of Health, was a necessary party, that the suit is barred by limitation that he is not a benamidar of defendants 3 to 8 and that he is the real purchaser and purchased the property at auction sale for his own benefit and got delivery of possession in due course, acquired valid title and parted with major portion of his interest in favour of different persons. He asserts that proper notices and other processes were duly served on the certificate-debtors and the allegations regarding fraud, collusion and non-service are incorrect. He denies that lie is the servant and employee of defendants 3 to 8 and says that he is a registered clerk of one Babu K. P. Singh Choudhary, pleader, Dhonbad, and, in this way he denies all the allegations of the plain-tiff regarding fraud, collusion and non-service. Defendant 2 has filed his written statement on the same lines, and has further said that the suit is barred under Sections 45 and 46, Bihar find Orissa Public Demands Recovery Act (B and O Act 4 of 1914), that he is not a 'benamidar' for defendants 3 to 8. and that his purchase is real and genuine, and he purchased the property for valuable consideration. Defendant 6 also made the allegations con-tained in the written statement of defendant 1. Only defendants 2, 5 and 6, however, contested the suit.