SARJUG BARHI Vs. DEVENDRA MAHTO

JUDGEMENT

(1.) The appellants are defendants 1 to 4 in a suit for declaration of title and recovery of possession. The property in dispute is 6.02 acres of raiyati lands of Khata Nos. 52 and 53 in village Pahri in the district of Gaya. In a sale held in execution of a rent decree, two of the co-sharer landlords, defendants 17 and 18, purchased this holding. On July 18, 1946 these two co-sharer landlords executed a document (Ex. 3) in respect of the property in favour of the plaintiffs who are the respondents in the present appeal. It is the nature of this documents that is in question in this appeal.

(2.) In 1949, the plaintiffs instituted a suit for declaration of their title to the land and recovery of possession. There is some dispute as to whether defendants 17 of 18 had succeeded in getting actual possession of the land or only symbolic possession was delivered to them, but the point is not of any importance because there is no question of adverse possession in this case and defendants 1 to 4 who were some of the original tenants and who resisted the plaintiffs' claim had no subsisting interest in the property There were proceedings in 1947 under S. 145 of the Code of Criminal Procedure, 1898 over this properly which was attached under S. 146 of that Code, the land was put in the possession of a receiver and the parties were referred to the Civil Court for adjudication of their rights. The respondents then instituted the suit out of which this appeal arises.

(3.) The plaintiffs' claim of title is based on the document Ex. 3 and the only question involved in this appeal relates to the character of this document. The trial court decreed the suit holding that though Ex. 3 was labelled as a deed of sale, it was really a lease of the land given by the two co-sharer landlords, defendants 17 and 18, to the plaintiffs. The lower appellate court dismissed the suit on the view that the documents was a deed of sale by which defendants 17 and 18 sold raiyati rights in the land to the plaintiffs which the said defendants themselves did not possess. S. 22 (2) of the Bihar Tenancy Act reads: