GULAM NIZAM KHAN Vs. KABIR HASAN AND OTHERS

JUDGEMENT

(1.) JUDGEMENT This appeal arises out of a suit for permanent injunction restraining the first defendant Sri Kabir Hassan Khan from proceeding further with the execution proceedings in the execution case No. 213 of 1954 in respect of plot No. 218 measuring .56 acre and situate in village Kuberpur.

(2.) IT appears from the record that one Sri Sarwar Khan along with some other persons had a one-third share in plot No. 218. They mortgaged their share with Sri Kabir Hasan. On the basis of that mortgage Sri Kabir Hasan obtained a decree in suit No. 253 of 1919 on August 19, 1950. Sri Kabir Hasan applied for the execution of the decree which gave rise to the Execution Case No. 213 of 1954. It appears that he had asked for the sale of the one-third share mortgaged with him. The mortgagors had some cosharers in the said plot. Some of those cosharers had migrated to Pakistan and their interest vested in the Custodian as would appear from the order of the Assistant Custodian, dated July 19, 1955. It also appears from the order that Sri Ghulam Hazoor Khan and Sri Nizam Uddin Khan sons of Sri Ghaus Mohammad Khan resident of Diha were declared evacuees and their property mentioned in the notice was declared to be revacuee property. From the record of his case it further appears that during the pendency of the execution proceedings the present plaintiff Sri Ghulam Nizam Khan instituted a suit along with four others claiming that he was the sirdar of the plot in suit and that the Execution Case No. 213 of 1954 could not proceed against plot No. 218 which he held as a Sirdar. That suit was dismissed, as is clear from the decree dated May 20, 1959.

(3.) IT appears from the certificate of sale that after the decision of the Competent Officer the plot was sold for Rs. 325 in favour of Sri Ghulam Nizam Khan, the plaintiff appellant in this case. Having obtained the sale certificate dated September 17, 1957 from the court of the Competent Officer (if at all he can be called a court) the plaintiff appellant Sri Ghulam Nizam Khan wanted to amend the plaint of suit No. 8 of 1957, which he had filed for a declaration of the Sirdari right in the plot to the effect that he had become a Bhumidhar thereof in pursuance of the sale certificate dated September 17, 1957. The amendment was disallowed and ultimately the suit was dismissed as already stated on May 20, 1959. After the dismissal of that suit the present suit (Suit No. 159 of 1959 Sri Ghulam Nizam Khan v. Sri Kabir Hasan and others) was instituted on August 3, 1959. I have earlier mentioned the relief claimed in the suit. In the present suit the plaintiff founded his claim on the sale of the plot in his favour by the Competent Officer.