SEN (A.K.) versus THE STATE OF WEST BENGAL AND ANR.

Citation: [1978] 3 S.C.R. 686 · Decided: 18-04-1978 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Dismissed

Judgment (excerpt)

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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 cons-
pectus 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 
G 
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. 
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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 Ben-
gal 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 deino-
lition 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-
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