HEMGOPAL SINHA Vs. JITENDRA NATH RAY

JUDGEMENT

(1.) The property in suit appertains to a jama of Rs. 16-4 standing in the name of Haradhan Mondal and others. Manindra Nath Roy, the father of the Plaintiffs, was one of the co-sharers of touzi No. 310 of the Birbhum Collectorate. The Rs. 16-4 jama was purchased by Manindra Nath. From the materials on the record, it cannot be stated as to when Manindra Nath, as co-sharer Zemindar, acquired this jama held under the different sets of co-sharers. In October, 1928, one Dharanidhar Pal purchased the said jama of Rs. 16-4 in execution of a money decree obtained against Manindra Nath. The sale was confirmed two months later. The cadastral survey record of the mouza in question was finally published in May, 1929. This particular Rs. 16-4 jama was recorded as follows : Manindra Nath was regarded as being in possession under Section 22(2) of the Bengal Tenancy Act. In the remarks column it was noted that Manindra Nath was liable to pay rent to the different sets of co-sharer owners of the touzi. Dharanidhar, the purchaser in the Money Execution Case No. 160 of 1928, obtained possession through the court on October 3, 1931. The same property was sold again in execution of other money decrees obtained against Manindra Nath. In 1932, however, a suit was filed by the different sets of co-sharer landlords against Manindra Nath for recovery of arrears of rent due in respect of the same jama. The co-sharer landlords recognised the existence of Manindra's title in the said jama. One Sabitri Prava Sinha, who is Defendant No. 1 in the present case, obtained transfer from one of the purchasers, Nirmal Shib Banerjee and in 1935 she filed a suit for recovery of possession of three plots included within the jama. This suit was dismissed against Dharanidhar on the finding that the Plaintiff Sabitri was out of possession. Radharani who had obtained an unregistered conveyance in December, 1931, from Dharanidhar Pal obtained again a duly registered conveyance on July 16, 1942. The Plaintiff brought this suit in November, 1942, on the allegation that the alleged rent decree in 1932 was not of the nature of a rent decree. The same having the effect of a money decree, Defendant No. 1 had obtained no title as a result of a purchase under the said decree. That it is so is inasmuch as Manindra had ceased to have any interest in the jote as the same was sold in 1928 and purchased by Dharanidhar in execution of a money decree obtained against Manindra.

(2.) The defence, on the other hand, is that the interest of Manindra in the jote was that of a proprietor of the parent touzi. Manindra being a co-sharer landlord, the jote ceased to exist as such, as soon as Manindra purchased the same. The jote itself not being in existence, Dharanidhar got no title by his purchase in 1928. The Plaintiff, being a transferee from Dharanidhar, has got no title to the jote in question. Both the courts below have decreed the suit. Hence this appeal on behalf of Defendant No. 2.

(3.) The decision of the principal question raised in this appeal rests on a determination of the nature of the right which had been obtained by Dharanidhar when he purchased the right, title and interest of Manindra Nath in the said jote.