GIRISH CHANDRA GUPTA, J. - (1.) THE Court : This is a suit for recovery of possession of premises No. 6, Clive Row, Hastings, Calcutta together with mesne profits. The case of the plaintiff briefly stated is that the plaintiff purchased premises No. 6, Clive Row, Hastings House at an auction sale. Originally the premises No. 6, Clive Row, Hastings, Calcutta belonged to the defendant No. 2 who defaulted in making payment of the ground rent to the Revenue Authority as a result whereof the Revenue Authority put up the premises for sale under the provisions of Public Demand Recovery Act. The amount due from the defendant No. 2 was certificated but the certificate remained unsatisfied which culminated in the sale of the premises. The plaintiff was the highest bidder. The sale was concluded in his favour. After the sale was concluded in his favour the defendant No. 1 namely Union of India and the defendant No. 2 namely Seamen's Welfare Association both resorted to various proceedings challenging the sale concluded in favour of the plaintiff.
(2.) ON 28th August, 1957 the defendant No. 2 applied for setting aside the sale. The application made by the defendant No. 2 was dismissed on the ground of limitation by an order dated 25th November, 1957. The defendant No. 2 preferred an appeal which was disposed of by an order dated 11th March, 1958 by which the appeal was dismissed. The defendant No. 2 challenged the order dated 11th March, 1958 before the Commissioner, Presidency Division in revision and the said revisional application was also dismissed by an order dated 9th May, 1958. Against the order dated 9th May, 1958, the defendant No. 2 applied before the Board of Revenue. Such application was registered as Revisional Case No. 136 of 1958. The Additional Member of the Board of Revenue by the order dated 5th February, 1960 allowed the application made by the defendant No. 2 by directing that the application made by the said defendant on 28th August, 1957 should be heard on merits. It is worth remembering that the application made on 28th August, 1957 had been dismissed on the ground of limitation. Aggrieved by the order dated 5th February, 1960 the plaintiff came up before this Court under Article 226 of the Constitution of India. The writ petition made by the plaintiff was allowed by a judgment and order dated 18th June, 1962 delivered by B.N. Banerjee, J. (as His Lordship then was). The judgment passed by Banerjee, J. is exhibit 'J' in this suit. It would appear from Exhibit 'J' that the defendant No. 2 Seaman's Welfare Association and Union of India were both parties to that writ petition. The order passed by the Additional Member of the Board of Revenue was set aside for the following reasons : - 'There is nothing to show that the delay in making the application was due to the fact that the petitioner association was unable to file an application before its meeting was held or that it was misled by the pendency of the application to have the sale set aside which had been filed by the Executing Engineer, CPWD. The Member of the Board of Revenue should not have taken these facts into consideration, which were not borne out by evidence. The order dated 18.6.1962 was appealed against and has since been dismissed by the Appellate Court. The challenge thrown by the defendant No. 2 thus stood extinguished. It appears that the defendant No. 1 has also by a separate appeal challenged the order dated 18.6.1962 passed by Banerjee, J. But the said appeal appears to have been withdrawn. I have crosschecked this fact with Ms. Joshi, learned counsel appearing for the defendant No. 1 and there is no dispute that the appeal preferred by the defendant No. 1 has in fact been withdrawn. Therefore, the order passed by Banerjee, J. became final. We have also noticed that Banerjee, J. in his judgment referred to a challenge thrown independently by CPWD to the sale concluded in favour of the plaintiff which, it is not in dispute, was ultimately unsuccessful. There can, therefore be no dispute that the plaintiff is the auction purchaser of premises No. 6, Clive Row and he has acquired the interest of the defendant No. 2.
(3.) THE defendant No. 2 has filed a written statement his contention appears to be two fold: - a) that the certificate sale is wrongful and illegal; b) that the control and management of premises No. 6, Clive Row was taken over by the Port Health Officer with effect from 1st October, 1948 on the basis of a letter dated 22nd September, 1948 issued by the Ministry of Health, Government of India and that with effect from 1st April, 1954 the administration and control of the premises, wherefrom the clinic used to be run, was taken by CPWD and therefore it alleges that liability to pay ground rent was of the defendant No. 1.;