# SEN (A.K.} v. THE STATE OF WEST BENGAL AND ANR

- **Citation:** [1978] 3 S.C.R. 686
- **Court:** Supreme Court of India
- **Decided:** 1978-04-18
- **Bench:** S. Murtaza Fazal Ali, Jaswant Singh, R. S. Pathak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sen-a-k-v-the-state-of-west-bengal-and-anr-7416
- **Pages:** 5

## Headnote

Civil Procedure Code, (Act V), 1908-'-0rder XX/ Rule 94'----Certificate
to tile purchaser granted by the Court in the case of a sale in execution of
1noney decree-scope of sale under Rule 94.
The original plaintiff one Kumud Bala Dasi filed a Title suit No. 82/1952
with the permissioll of the High Court of Calcutta against the appellant claiming
recovery of possession otf the suit land and alleging that what was attached by
the executing court for realisation: of the money portion· of the decree obtained ·
by the Official Receiver in an earlier Title Suit No. 317 /1939 .filed by him and
what was sold were the structures standing on the suit land and not both the Jarid
and the stmctures thereon. She, therefore, prayed for a declaration to that effect
and consequently .delivery of vacant and Khas possession of the suit land to her
by removi_ng the structures, standing thereon and to make over to her the sum
unjustly realised by the appellant by letting_ out the said structures.
The trial
Court dismissed the suit, but the High Court on appeal reversed the judgment
of the trial Court, gaver the declaration sought for a\ld directed that on her
depositing the value of the structures to be determined by the trial Court, the
same would also become her property and she would get possessian of the
entire pr0perty and in default of the said deposit her suit would stand dismissed.
Dismissing the appeal by certificate, the Court.
HELD : 1. In cases of this nature what has got to be ascertained is what
is the nature of the right, title and interest which was really intended to be
sold in execution of the decree. Any misapprehension in that behalf on the part
of the Court or the purchaser cannot affect the true legal effect of the sale.
In the present case, the right, title and interest of Kumud Bala Dasi in the
suit land being the subject matter of pending litigation at the time of sale, in
question what was sought and intended to be sold were the structures simpliciter~
'vhich mea.nt only the materials of the structures and not the site underneatn
or appurtenant thereto nor the permanent tenancy rights in the site. On a conspectus of all the facts and circumstances of tlie case, the sale certificate cannot
be construed as conferring any right, title or interest on the appellant with respect
to the permanent tenancy rights in the suit Iand which was underneath
and
appurtenant to the structures. [689 B·C, D·E]
Pettachi Chettiar v . .Sangili Veera Pandia, L.R. 14 I.A. 84 @. 85; followed.

## Text

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686
SEN (A.K.}
v.
THE STATE OF WEST BENGAL AND ANR.
April 18, 1978
[S. MURTAZA FAZAL ALI, JASWANT SINGH AND R. S. PATHAK, JJ.J
Civil Procedure Code, (Act V), 1908-'-0rder XX/ Rule 94'----Certificate
to tile purchaser granted by the Court in the case of a sale in execution of
1noney decree-scope of sale under Rule 94.
The original plaintiff one Kumud Bala Dasi filed a Title suit No. 82/1952
with the permissioll of the High Court of Calcutta against the appellant claiming
recovery of possession otf the suit land and alleging that what was attached by
the executing court for realisation: of the money portion· of the decree obtained ·
by the Official Receiver in an earlier Title Suit No. 317 /1939 .filed by him and
what was sold were the structures standing on the suit land and not both the Jarid
and the stmctures thereon. She, therefore, prayed for a declaration to that effect
and consequently .delivery of vacant and Khas possession of the suit land to her
by removi_ng the structures, standing thereon and to make over to her the sum
unjustly realised by the appellant by letting_ out the said structures.
The trial
Court dismissed the suit, but the High Court on appeal reversed the judgment
of the trial Court, gaver the declaration sought for a\ld directed that on her
depositing the value of the structures to be determined by the trial Court, the
same would also become her property and she would get possessian of the
entire pr0perty and in default of the said deposit her suit would stand dismissed.
Dismissing the appeal by certificate, the Court.
HELD : 1. In cases of this nature what has got to be ascertained is what
is the nature of the right, title and interest which was really intended to be
sold in execution of the decree. Any misapprehension in that behalf on the part
of the Court or the purchaser cannot affect the true legal effect of the sale.
In the present case, the right, title and interest of Kumud Bala Dasi in the
suit land being the subject matter of pending litigation at the time of sale, in
question what was sought and intended to be sold were the structures simpliciter~
'vhich mea.nt only the materials of the structures and not the site underneatn
or appurtenant thereto nor the permanent tenancy rights in the site. On a conspectus of all the facts and circumstances of tlie case, the sale certificate cannot
be construed as conferring any right, title or interest on the appellant with respect
to the permanent tenancy rights in the suit Iand which was underneath
and
appurtenant to the structures. [689 B·C, D·E]
Pettachi Chettiar v . .Sangili Veera Pandia, L.R. 14 I.A. 84 @. 85; followed.
CIVIL APPELLATE JURISDICTION : Civil
1968.
Appeal No.
1644
of
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From the Judgment and Order dated 19-9-1961 of the Calcutta
High Court in Appeal from Original Decree No. 32/56.
A. K. Sen and P. K. Ghosh for the Appellant.
P. K.
Chatterjee,
Produyot Kumar Chakravarti and G. S.
Chatterjee for the Respondent.
H
The Judgment of the Court was delivered by
JAsWANT SINGH, J. This appeal by certificate granted by the High
Court at Calcutta under sub-clauses (a) and (b). of clause (1} of
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SEN v. WEST BENGAL STATE (Jaswant Singh, J.)
687
Article 133 of the Constitution read with section 110 of the Code of
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Civil Procedure arises out of a suit, being Title Suit No. 82 of 1952
instit~ted on ~ul)'. 8, 1952 in the Sixth Court of the Subordinate Judge
at Altpore, District 24-Parganas, West Bengal, by Kumud Bala Dasi,
the original plaintiff, against the appellant, who is the Official Receiver
of. the High Court, as the principal defendant, and Birajabala Debi,
widow ?f Probodh Chandra Chattetjee, as proforma defendant, for
declaration that she had permanent kayami Mourasi Mukarari Title
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to the suit land measuring 6 Cottas, 4 Chhataks and 4 Sq. ft. situate
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on Barrackpore Trunk Road within District 24-Parganas, West Bengal and that the possession of the appellant thereon was illegal and
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wrongful as well as for Khas possession of the said land after deinolition and removal of the structures and shop rooms standing thereon
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and for mesne profits.
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The case as put forth by the plaintiff was that property measuring
about 9 Cotta_s, 12 Chhataks detailed in Schedule 'Ka' forming
annexure to the plaint was held by one Dayamayee as a tenant under
the Official Receiver of the High Court at Calcutta, who was appoint-
"'--...
ed as such in the eqnity suit of the former Supreme Court at Calcutta
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between Gopalmoni Dasi and Ramonath Thakur, on a rental of
Rs. 33/12/- annas per annum; that Dayamayee died leaving a will
bequeathing the aforesaid property to her brother, Ram Chandra
Jana, who obtained probate of _the will and got into possession of the
said property; that on the death of Ram Chandra Jana, the said
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property was inherited by his only son, Jiban Krish11a, from whom
she (the plaintiff) purcqased the same in the benami of Probodh
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Chandra Chatterjee, deceased husband of Birajabala Debi, the pro-
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forma defendant, by a registered kobal a dated May 9, 1922 for a consideration of Rs. 1,500/-; that thereafter she continued to remain in
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possession of the said property and to pay the aforesaid annual rent
and not only affected improvements on the already existing structures
but erected several other structures as well; that by making false
representations that the said 9 Cottas and 12 Chhataks comprised
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two plots, one of which i.e. the suit land measured 6 Cottas, 4
..
Chhataks and 4 Sq. ft., the predecessor of the appellant got a sepa-
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rate number allotted to it by the Corporation; that the Official Receive.: instituted Title Suit No. 317 of 1939 against her iii the 1st
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Court of the Munsif at Sealdah claiming arrears of rent in respect of
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the aforesaid 'Ka' schedule property as also the amount paid by way
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of taxes and her eviction therefrom which was decreed against her on
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Ma1 3, 1941; that aggrieved by the said decision, she preferred an
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appeal in so far as it related to her eviction from the said property but
did not prefer an appeal against the other part of the decree relating
to rent and taxes; that the said appeal was decided and decreed _in
her favour on March 11, 1942 by the 2nd Additional Subordinate
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Judge, Alipore, who held that the tenancy held by her being a permanent one, she was not liable to be evicted from the proterty; that
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on July 22, 1941, the Official Receiver took out execut on of the
money portion of the decree obtained by him in Title Suit No. 317 of
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1939 in the First Court of the Munsif at Sealdah praying that the
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688
SUPREME COURT REPORTS
[1978] 3 S.C.R.
decretal amount be got realized by attachment and sale of her immovable property comprised in premises No. 27/H/4, Barrackpore
Trunk Road standing on approximately 6 Cottas, 4 Chhataks and 4
Sq. ft. of the aforesaid land viz.
one-storeyed four-roomed pucca
structure with fittings and fixtures and two-roomed structure on the
first floor, seven shop rooms with fittings and fixtures and all interest
therein valued approximately at Rs. 100/-; that on August 8, 1941,
the said property belonging to her was attached by means of a .prohibitory order under Order 21, Rule 54 of the Code of Civil Procedure and was sold and purchased by tlie appellant himself on January
5, 1942; that after various proceeaings~ the said sale of her property was confirmed and sale certificate was issued m favour of the
appellant on August 21, 1944; that though on the appellant's makiflg
an application for possession of the aforesaid property, she filed '1n
application under section 4 7 of the Code of Civil Procedure contending therein that under the aforesaic\ ·decree obtained by him, the appellant could at best be entitled to remove the structures alleged to have
been purchased by him but he could not have any right to the land
belonging to her, the same was rejected vide Order dated February
21, 1946; that she preferred an appeal against the order dated February 21, 1946 but the same was dismissed on June 20, 1946; that she
also took the matter to the High Court in second appeal which was
also dismissed on April 24, 194 7; that thereafter she made another
application under section 4 7 of the Code of Civil Procedure reiterating, therein that the appellant had purchased only structures and not
the land on which they stood and the appellant was not entitled to get
possession of the land but that too was dismissed whereafter the appellant illegally obtained possession of the buildings and structures standing on the said 6 Cottas, 4 Chhataks and 4 Sq. ft. of land together
with the land itself on March 11, 1948; and that her ·repeated requesfa
and notice under section 80 of the Code of Civil Procedure to the
appellant to deliver vacant and khas possession of the suit land to
her by removing the structures standing thereon and to make over to
her the sum unjustly realised by him by letting out the said structures
having proved ineffective, she applied to the High Court at Calcutta
for permission to file a suit for. vindication of her title which was
granted by the High Court vide its order dated May 15, 1952 pursuant whereto she brought the aforesaid Title Suit No. 82 of 1952.
The suit was contested by the appellant on various grounds and
was ultimately dismissed by the trial court by its judgment and decree
dated May 27, 1952. Aggrieved by the decision of the trial c .. urt,
the original plaintiff preferred an appeal to the High Court at Calcutta. The High Court allowed her appeal, reversed the judgment of
the trial court, gave the declaration sought for by the plaintiff and
directed that on her depositing the value of the structures to be determined by the trial court, the same would also become her property
and she would get possession of the entire property i.e. of the land
and the sllructures by execution of the decree, if necessary, and in default of the said deposit, her suit would stand dismissed.
Aggrieved
by the said judgment and decree, the appellant applied to the High
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SEN v. WEST BENGAL STATE (Jaswant Singh, !.)
689
Court for leave to appeal to this Court and issue of the requisite cerA
tificate which was granted. This is how the present app_eal is before
us.
Appearing on behalf of the appellant, Mr. Ashok Sen has contended ihat the High Court has erred in decreeing tbe plaintiff's claiin
ignoring that what was purchased by the appellant in the aforesaid
auction sale were structures as entities which meant both structures
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and the tenancy rights of Kumud Bala Dasi in the land underneath
and appurtenant to the structures and not merely the materials of the
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structures. We are unable to accede to this contention.
fo cases of
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this nature what has got to be ascertained is what is the nature of
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the right, title and interest which was really intended to be sold in
execution of the decree. Any misapprehension in that behalf on the c
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part of the Court or the purchaser cannot affect the true legal effect
..,,_,,-, ....... '., of the sale .
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In Pettachi Chettiar v. Sangili Veera Pandia('), Lord Watson observed that in the case of a sale in execution of a money decree, "the
questions are what did the Court intend to sell, and what did the purchaser understand that he bought?" It cannot be disputed that these
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are questions of fact, or rather of mixed law_ and fact, and must be
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determined according to the evidence in the particular case.
In the present case, the right, title and interest of Knmud Bala
Dasi in the suit land being the subject matter of a pending litigatiorl
at the time of the sale in question, what was sought and intended to
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be solJ were the structures simpliciter which meant only the materials
of the structures and not the site underneath or appurtenant thereto
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nor the permanent tenancy rights in the site.
Thrs becomes further
clear from a close examination of the evidence adduced iri the case.
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It would be noticed that in the application submitted by him for exe-
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cution of the aforesaid decree passed in Title Suit No. 317 of 1939,
the appellant (decree holder) prayed to the Court that the decretal
amount be got realised by attachment and sale of the property of the
judgment debtor as mentioned in the Schedule. Now in the Schedule,
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the property which was sought to be attached and fold was described
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as under:-
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SCHEDULE OF IMMOVABLE PROPERTY
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Within District 24-Parganas sub-Registry, Sealdah, P.S.
<::hitpur comprised in premises No.
27 /H/4, llarrackpore
Trunk Road, and standing on approximately 6 Cot. 4 Chh.
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4 Sq. ft. (six Cottas four Chhataks and four square feet) of
land described in Schedule below--0ne storeved four roomed
pueca structure with fittings and fixtures, and two roomed
structure on the first floor having brick walls and roof of
Raniganj tiles upon the one-storeyed structure, seven shop
rooms having walls (sic) and roofed with tin and two tinsheds inside with fittings and fixtures and all interests thereH
in-valued approximately at Rs. 1007-.
,
·.(I) LK 14 I.A. 84 at 85.
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690
SUPREME COURT REPORTS
[1978] 3 S.C.R.
A
North-Gun Foundry Road
East--Ba1nckpore Trunk Road.
South-Plaintiff's land (Illegible) structure.
B
West-Plaintiff's land, Kamal Sukdeo Prosad's structure (?)"
On the said application for execution of the decree, the Court
passed a prohibitory order on July 31,. 1941 prohibiting and restraining the judgment debtor from transferring or charging by sale, gift
or otherwise the property specified in the Schedule annexed thereto.
The Schedule forming annexure to this order was an exact copy of
the Schedule reproduced above.
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It would also at this stage be profitable to refer to the application (Exh 8 at page 107 of the Paper Book) made by the decree
holder on August 15, 1941 for sale of the attached property.
The
underlined portion of the said application which reads as
under is
significant :-
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"That the petitioner has executed his decree and has
attached the immovable properties of the judgment debtor
which consists of the
strui:tures standing on 27/H/4,
Barrackpore Road.
That so far as is known to this peti-·
tioner, the attached property is free from encumbrance."
It may also be relevant to mention here that allowing Kumucl
Bala Dasi's appeal (No. 258 of 1941) which was directed against the
judgment and decree of the 1st
Court of the Mutisif at Sealdah
passed in Title Suit No. 317 of 1939, the 2nd Additional Court of
the 1Subordinate, Alipore rejected on March 11, 1942 the appella1it'S
prayer for khas possession by evicting Kumud Bala Dasi on the
ground that her tenancy being permanent, she wa~. not liable to be
evicted from the suit land.
The fact that it was only the structures
which were sold and not the structures together with the permanent
tenancy rights in the site on which they stood is also evident from
the fact that the appellant who himself was !he decree holder and
understood the entire position purchased the same for a paltry sum
of Rs. 638-11-9.
Surely the price would ha"e been much more if
the structures had been auctioned along with the permanent tenancy
rights in the site on which they stood.
On a conspectus of all the
facts and circumstances of the case, we are not able to construe the
sale certificate as conferring any right, title or interest on the appellant
with respect to the permanent tenancy rights in the suit land which
was underneath and appurtenant to the structures.
For the foregoing reasons, we are of the opinion that the High
Court was right in decreeing the plaintiff's claim. In the result the
appeal fails and is dismissed with costs.
S.R.
Appeal dismissed.
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