BIPRA CHARAN SARKAR Vs. RUPESWARI DASI

JUDGEMENT

(1.) This is an appeal by the plaintiffs under Clause 15 of the Letters Patent against the judgment of Mookerjee J. dated 6-9-1950.

(2.) The disputed property and certain other property belonged to one Mohan Chand Choudhury. On his death the property devolved on his sons Doman, Satish and Ananta. Doman's widow is Damayanti, defendant 4. Satish and Ananta are defendants 2 and 3. In 1929 Doman as Katra of the joint family of the Choudhurys mortgaged the disputed property and certain other lands comprising about 12 bighas in favour of the plaintiffs. As the rent of the mortgaged property was unpaid the landlords instituted a suit for recovery of rent and obtained a decree and in execution thereof auction-purchased the said property on 8-6-1935. Thereafter the landlord auction-purchaser let out the disputed property about 6 bighas to defendant 1, Rupeswari, who is the mother of Satish and Ananta, defendants 2 and 3. The remaining lands viz. 6 bighas were let out to Damayanti, defendant 4. On 15-4-1940 the plaintiffs instituted a suit to enforce their mortgage of the year 1929. In that suit Damayanti, Satish and Ananta were made parties. Rupeswari, defendant 1 was, however, not made a party. The suit was decreed finally on 17-2-1942. In execution of the said decree the plaintiff decree-holders auction-purchased the mortgaged property on 25-5-1942. The sale was confirmed on 29-7-1952 and possession was taken through court on 10-12-1942. Thereafter the plaintiffs were resisted by defendants 1, 2 and 3 in obtaining possession about the months of January, February 1943. The plaintiffs accordingly filed the present suit on 17-6-1944 for declaration of their title and for recovery of possession. The suit was confined to 6 bighas which was let out to defendant 1 Rupeswari. The suit was contested by defendants 1, 2 and 3.

(3.) As a result of a contested hearing the trial court dismissed the plaintiffs' suit and on appeal by the plaintiffs the judgment of the trial court was affirmed. The findings of the lower appellate court may be summarised thus: that the decree in the suit for rent and the sale held thereunder were not collusive, that defendant 1 Rupeswari took a lease on her own account from the landlord auction-purchaser and that she was in possession thereafter through her sons, defendants 2 and 3, Satish and Ananta, that the plaintiffs were not served by the landlord auction-purchaser with a notice under Section 167, Bengal Tenancy Act, and the plaintiffs' morgage was, therefore, not annulled, that the plaintiffs' claim on the mortgage bond was barred at the date of the present suit. Against the concurrent decisions of the courts below a second appeal was filed in this Court by the plaintiffs. The second appeal was dismissed on 6-9-1950 by Mookerjee J. In his judgment the learned Judge referred to what he calls "great divergence of judicial opinion" but preferred to follow the current of decisions in recent time. The learned Judge gave the plaintiffs leave to file an appeal under Cl. 15 of the Letters Patent. The present appeal was filed by the plaintiff in pursuance of the said leave.