AHAMMAD MONDAL Vs. MONJUR MONDAL

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from a judgment and decree, dated January 25, 1952, passed by P.N. Mookerjee, J., in Second Appeal No. 2059 of 1947, whereby the learned Judge allowed the appeal of the first Respondent. The present appeal is by the Plaintiff.

(2.) The facts of the case lie within a short compass. It appears that a raiyati holding was held by one Ketabuddin, who died leaving him surviving five sons, two daughters and one widow. In the judgment under appeal, it is stated that the heirs of Ketabuddin were three sons and three daughters, but we were informed that that statement was not correct. The holding appears to have stood in the papers of the landlord in the name of Makbul, one of the sons of Ketabuddin, and it was sold at a rent-sale on March 4, 1925, in execution of a rent-decree obtained against Makbul as the sole Defendant. At the sale, the holding was purchased by one Nur Muhammad of Abdullapur. It is necessary to add the qualifying phrase to the name of the auction-purchaser, in as much as there is another Nur Muhammad with whom he is likely to be confused.

(3.) It appears further that on July 17, 1915, Ketabuddin executed a mortgage in respect of the lands of the holding in favour of one Taradas Das. In a suit brought upon that mortgage, Taradas obtained a decree on February 11, 1928, and that was a decree obtained against all the heirs of Ketabuddin. Taradas put the mortgage decree into execution and brought the properties to sale at which he appears to have purchased them himself. When he was about to take possession, a suit was brought by the auction-purchaser Nur Muhammad on May 19, 1939, against him as also the heirs of Ketabuddin who were impleaded as pro forma Defendants Nos. 2 to 9. That suit was Title Suit No. 111 of 1939. In the plaint, the Plaintiff Nur Muhammad stated that he had purchased the holding at a rent-sale and, therefore, the title to the lands was at the time of the mortgage-sale and at the moment in him and not in the pro forma Defendants Nos. 2 to 9. The right to possession, it was further averred, was also in him. On that footing he asked for a declaration of his own title and for a decree for recovery of possession against the Defendants and also an injunction restraining the mortgagee decree-holder, Taradas, from putting his decree into execution against the lands of the holding and disturbing the Plaintiff's possession. The suit was dismissed by the trial Court whereupon Nur Muhammad preferred an appeal which was Title Appeal No. 116 of 1939. The appeal was allowed, a declaration of Nur Muhammad's title was made and khas possession was decreed in his favour. An injunction was also granted against Taradas, restraining him from taking possession of the properties purchased by him at the mortgage execution sale. That litigation did not proceed further.