ABINASH CHANDRA MONDAL Vs. MATILAL MUKHERJEE

JUDGEMENT

(1.) This second appeal is by the plaintiff in Title Suit No. 34/1949 of the First Court of the Munsif at Howrah, against the judgment and decree passed by the learned Subordinate Judge, Second Additional Court, Howrah, dismissing the appeal preferred by him against the judgment and decree of the said learned Munsif, dismissing the above suit. The facts of this case lie within a narrow compass and may be stated as follows:

(2.) Respondents Nos. 12 and 13 used to hold a Jama of Rs. 20/7/- and odd under the co-sharer landlords, Respondents Nos. 1 to 11. The plaintiff-appellant auction-purchased the said holding in the sale held on 18-11-46 in Rent Execution case No. 73/1946, started by some of the co-sharer landlords, namely, Respondent No. 1 and Late Bejoy Krishna Mookerjee, predecessor of Respondents Nos. 2 to 4, in execution of the decree obtained by them on 11-6-43 in Rent Suit No. 142/1942. The said sale was confirmed on 19-12-46. But it appears that another co-sharer landlord, namely, Anath Nath Goswami, Respondent No. 5, had previously instituted a Rent Suit (No. 453/1940) and in execution of the decree obtained therein on 20-1-41, himself auction-purchased the holding on 20-6-44 and the said sale was confirmed on 26-8-44. On coming to learn of the previous auction-purchase of the holding by the said co-sharer landlord, Anath Nath Goswami, the plaintiff, applied under Order XXI, Rule 91 of the C. P. C. for having set aside the said sale, on the ground that the said judgment-debtors, namely, Respondents Nos. 12 and 13, had no saleable interest in the property at the date of his auction-purchase. On 16-7-47 a Miscellaneous proceeding, being Misc. Case No. 154/1947, was started on the basis of the said application and the said case was eventually dismissed on 17-6-48 on the ground of limitation.

(3.) Being baffled thereby, the plaintiff instituted the instant suit (T. S. 34/1949) for getting a declaration that the sale held in Rent Execution Case No. 73/1946 was null and void as the judgment-debtors in the said proceeding had no saleable interest in the property on the date of the auction-sale, and that this fact was fraudulently suppressed by the decree-holders, namely, Respondent No. I and the predecessor of Respondents Nos. 2 to 4, and for refund of the purchase money deposited by the plaintiff in the above execution case.