Sidheshwari Prasad NaraIn Singh and ors. Vs. Girdhar Das and ors. - Court Judgment

Excerpt:
civil procedure code (1892), section 315 - execution of decree--sale in execution--auction purchaser deprived of property purchased owing to failure of judgment-debtor's title--suit to recover purchase money. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - the law on this point is clearly settled, as may be seen by referring to the cases of kishun lal v. at both the auction sales everything within the enclosure, the boundaries of which were clearly specified in the sale proclamation, was put up for sale and was purchased by ram prasad singh in february.piggott and walsh, jj.1. the essential point raised by this first appeal is quite a simple one. certain house property situated within the city of benares belonged to one rajendradhari singh, who seems to have been heavily in debt. there were two auction sales of the house property in question-one on the 15th of february, 1906, resulting in a purchase by ram prasad singh, and another on the 18th of march, 1907, resulting in a purchase by the present plaintiffs respondents. the latter paid their purchase money into court and that money passed under the orders of the court into the hands of a large number of creditors of rajendradhari singh, who had applied for rateable distribution in respect of any money which might be realized by the auction sale. subsequently ram prasad singh brought a suit, in which he impleaded the judgment-creditor on whose application the attachment resulting in the sale of the 18th of march 1907 had been made, and also the present plaintiffs, the auction purchasers at the said sale. the result of that suit was a decision, between these parties, that the same property had been sold twice over, first to ram prasad singh in february, 1906, and then to the plaintiffs in march, 1907. it followed as a necessary consequence that on the date of the latter sale the judgment-debtor rajendradhari singh had no saleable interest in the property purchased by the plaintiffs. the latter had, therefore, obtained nothing by their purchase and became entitled to maintain a suit against all the judgment-creditors of rajendradhari singh to whom payments were made out of the money which the plaintiffs had paid into court. the law on this point is clearly settled, as may be seen by referring to the cases of kishun lal v. muhammad safdar ali khan (1891) i. l. r., 13 all., 883. and muhammad najitullah v. jai narain (1911) i. l. r., 86 all., 529. the court below has accordingly decreed the plaintiffs' claim against a large number of defendants, in accordance with the sums found to be respectively due from each defendant, or group of defendants. the appeal now before us is by five of the defendants only. the question as to the maintainability of the suit must be decided against the appellants in accordance with the rulings above referred to. the question whether the present suit was or was not within limitation has already been up to this court in appeal and has been decided in the plaintiffs' favour. the report may be found in i. l. r., 35 all., 419.2. there are pleas taken in the memorandum of appeal before us which are apparently intended to suggest that the decision in the suit brought by ram prasad singh has in some way been used against the present defendants improperly in this litigation. the plaintiffs were obviously entitled to prove that they had lost the benefit of their auction purchase by reason of the fact that ram prasad singh had succeeded in proving that he had himself purchased identically the same property at the auction sale of february, 1906. this fact could most readily be proved by the record of the suit in which ram prasad singh was the plaintiff and the present plaintiffs, along with the attaching creditor of rajendradhari singh, were the defendants. beyond this we do not think that the court below has made any use of the record of this previous litigation. the contesting defendants, other than original attaching creditor, were allowed to raise every question of fact which could have been raised by them if they had been defendants in the suit brought by ram prasad singh. they could not as a matter of fact have been made defendants in that suit, because it had been instituted before the order for rateable distribution of the sale proceeds of the sale of march, 1907, had been passed. this, however, we only mention incidentally. the questions of fact requiring determination at this trial were the identity or otherwise of the property purchased at the two sales, of february, 1906 and march, 1907, and, secondly, the validity or otherwise of the plea taken by these defendants that ram prasad singh was merely a (sic)benami purchaser for the benefit of the judgment-debtor, rajendradhari singh. the identity of the properties sold at the two auction sales has been established by abundant evidence, and the point scarcely admits of argument. the truth of the matter is that rajendradhari singh had purchased a number of contiguous houses in the city of benares and had then built himself a residence, with suitable out-houses and other appurtenances, situated within one single enclosure covering the sites of the various houses purchased by him. at both the auction sales everything within the enclosure, the boundaries of which were clearly specified in the sale proclamation, was put up for sale and was purchased by ram prasad singh in february. 1906, and by the present plaintiffs in march, 1907. there is no force in the contention that different house numbers were mentioned in the sale proclamations of the two years. the identity of the property sold is sufficiently established by the sale proclamations and by the evidence of the court official who conducted the sales. ram prasad singh was at any rate the ostensible purchaser at the sale of february, 1906. the evidence by which the defendants in this suit have sought to show that he was a benamidar for rajendradhari singh is of very little substance. certain evidence has been produced tending to show that rajendradhari singh was in funds in the month of february, 1906, so that he could have made this purchase if he wanted to do so. the case for the defendants can scarcely be said to go beyond this. it is true that ram prasad singh does not appear to have taken as yet effective possession of the whole of the property sold to him; but the evidence on the record supplies abundant explanation of this fact. when the time for delivery of possession came, rajendradhari singh was lying seriously ill inside the house, and it would seem that he died there shortly afterwards. the evidence for the defendants does not carry us beyond the fact that ram prasad singh has not hitherto taken steps to evict rajendradhari singh's widow from the premises. this may be due to sympathetic consideration on his part, or it may be that he does not desire to contest the possible question of the widow's right of residence. moreover, it must be remembered that ram prasad singh's position has been complicated by the subsequent auction sale of 1907 and by the litigation in which he has been involved in order to enforce his title. the decision of the high court in his favour was not pronounced until the month of november, 1909. on the whole, there seems no valid basis for a finding that the purchase effected by ram prasad singh at the auotion sale of february, 1906 was benami on behalf of the judgment-debtor, or was anything but a bond fide purchase for his own benefit. the defendants have further raised another very curious plea, suggesting that the auction purchase by the plaintiffs themselves in the month of march, 1907 was also benami, on behalf and for the benefit of rajendradhari singh or his heirs. in fact this seems to have been treated as the main issue in the case. we have been taken through the evidence on the point, and it is really unnecessary for us to say more than that we find no reason for dissenting from the opinion formed by the trial court regarding that evidence. we can find no real reason for doubting that the purchase money paid in connection with the auction sale of march, 1907 was found by the plaintiffs themselves and that the purchase was effected on behalf of the plaintiffs, for their benefit, by their agent, sheodhar prasad.3. the only remaining plea in the memorandum of appeal before us is that ram prasad singh's decree invalidating the sale of march, 1907, and affirming the validity of his own purchase at the sale of february, 1906, was obtained by some sort of fraudulent collusion between himself and the then defendants. there is no basis for that contention, beyond the fact that the present plaintiffs did not choose to appeal against ram prasad singh's decree; but the matter was fully fought out by the principal defendant, the attaching judgment-creditor, and the essential issues of fact were found in favour of ram prasad singh after contest, as they have again been found in his favour after contest in the present litigation. there is therefore no force in this appeal. we dismiss it with costs.