SASANKA SEKHAR HAZRA Vs. CHARU CHANDRA DUTTA

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for declaration of title and confirmation of possession in respect of C. S. plot No. 8041 measuring 3.02 acres of Shali land recorded in the khatian No, 2766 of Mouza Bara Balun in the name of pro forma defendants 2 to 4. The plaintiff who was a mortgagee purchased the above holding by a kabala on 28-10-1940. In execution of a rent decree, however, the same holding is alleged to have been purchased by the landlord defendant on 20-8-1940. In the execution petition, sale proclamation and the sale certificate there is alleged to have been misdescription of the holding in that plot numbers were described therein as C. S. plots 12049, 12050 and 12051 (instead of C. S. plot 8041) and the area was also wrongly stated to be 90 acres instead of 3.02 acres. On an application for amendment to the executing Court by the defendants appellants who alleged that they detected the mistake at the time of taking delivery of possession through Court the amendment was allowed on 10-9-43 and the sale certificate was brought in conformity with Khatian 2766. Subsequent applications by the present plaintiff under Section 174, B. T. Act under Sections 47 and 151, C. P. C. and under Order 47, Rule 1, Civil P. C. proved abortive and hence the present suit by the plaintiff.

(2.) The suit has been dismissed by both the lower Courts.

(3.) The main points urged on behalf of the appellant are that as it has been found that there was no publication of sale proclamation on C. S. plot 8041 nor was that plot mentioned in the original execution petition, sale proclamation or sale certificate that plot to which the plaintiff had acquired valid title by his purchase on 28-10-40 from the owners (Pro forma defendants 2 to 4) would not pass to the respondent by virtue of his auction purchase and the latter was estopped from questioning the plaintiff's title, notwithstanding the order of amendment passed by the executing Court on 10-9-1943 in favour of the defendant behind the back of the plaintiff.