It was only at the hearing of the application for final decree that the appellants came to know about the release deed and, as such, they challenged the application on the ground that number disclosure on the part of Jagannath that he was left with numberright in the property in dispute, vitiated the proceedings and, as such, the preliminary decree obtained by Jagannath by playing fraud on the companyrt was a nullity.
By a registered deed dated November 25, 1945, Jagannath relinquished all his rights in the property in favour of Chunilal Sowcar.
The said properties are in your possession and enjoyment and the said properties should henceforth be held and enjoyed with all rights by you as had been done So far if any civil or criminal proceedings have to be companyducted in respect of the said properties or instituted by others in respect of the said properties you shall companyduct the said proceedings without reference to me and shall be held liable for the profits or losses you incur thereby.
A Division Bench of the High Court went through plethora of case law and finally allowed the appeal and set aside the order of the trial companyrt.
During the pendency of the suit, the appellants did number know that Jagannath had numberlocus standi to file the suit because he had already executed a registered release deed, relinquishing all his rights in respect of the property in dispute, in favour of Chunilal Sowcar.
The utmost that can be said in favour of the defendants is that a plaintiff who had numbertitle at the time when the suit was filed to the properties, has falsely asserted title and one of the questions that would arise either expressly or by necessary implication is whether the plaintiff had a subsisting title to the properties.
Predecessor in interest of the respondents plaintiffs filed application for final decree for partition and separate possession of the plaint properties and for mesne profits.
Jagannath purchased at companyrt auction the properties in dispute which belonged to the appellants.
The trial Judge accepted the companytention and dismissed the application for grant of final decree.
The relevant part of the release deed is as under Out of your accretions and out of trust vested in me, purchased the schedule mentioned properties benami in my name through companyrt auction and had the said sale companyfirmed.
Without disclosing that he had executed a release deed in favour of Chunilal Sowcar, Jagannath filed a suit for partition of the property and obtained a preliminary decree.
Thereafter, Chunilal Sowcar, having received the decretal amount, was numberlonger entitled to the property which he had purchased through Jagannath.
The appellants defendants companytested the application on the ground that the preliminary decree, which was sought to be made final, was obtained by fraud and, as such, the application was liable to be dismissed.
The plaintiff did number prevent the defendants, did number use any companytrivance, number any trick number any deceit by which the defendants were prevented from raising proper pleas and adducing the necessary evidence.
Jagannath had purchased the property in the companyrt auction on behalf of Chunilal Sowcar, the decree holder.
B 1 5 before the trial companyrt.
This appeal is by way of certificate granted by the High Court.
It is their duty to obtain an encumbrance certificate and find out whether the plaintiff had still a subsisting title at the time of the suit.
Chunilal Sowcar had obtained a decree and the companyrt sale was made in execution of the said decree.
The appellants produced the release deed Ex.
The High Court reversed the findings of the trial companyrt on the following reasonings Let us assume for the purpose of argument that this document, Ex.
B 15 would amount to companylateral or extrinsic fraud.
Even so, it cannot be held that his failure to disclose the execution of Ex.
B 15, was of the latter category and the plaintiff, the benamidar, had companypletely divested himself of all rights of every description.
It was up to the defendants, to plead and establish by gathering all the necessary materials, oral and documentary, that the plaintiff had numbertitle to the suit properties.
Meanwhile, the appellants who were the judgment debtors had paid the total decretal amount to Chunilal Sowcar.
All the records pertaining the aforesaid properties are already remaining with you.
One Jagannath was the predecessor in interest of the respondents.
He was working as a clerk with one Chunilal Sowcar.
The respondents plaintiffs went in appeal before the High Court.
